Seanad Éireann debate -
Wednesday, 26 Feb 1964

Vol. 57 No. 7

Private Business. - Criminal Justice Bill, 1963—Second Stage.

Question proposed: "That the Bill be now read a Second Time".

Minister for Justice (Mr. Haughey)

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.

Mr. Lindsay

There is no doubt this is a measure of vital importance and deals with a situation in our legal code which requires serious consideration. There is no doubt that this vital importance not alone demands but commands the serious consideration of this House, and on a matter of this kind the very first view I shall express —and it is my own—is that this Bill should be presented to the House without Whips, that it should be left to a free vote of the House.

The precept which we follow is a very old one in relation to murder: it is the Commandment "Thou shalt not kill." Admittedly, many changes have taken place since, but I cannot see that any of the changes that have taken place in our community or in any other community have been ones that should be regarded as an ease of the wrongdoer, and by wrongdoer I mean a person guilty of killing another with malice, intentionally.

We are living in a queer age, in an age of Beatlemania, where the civic concept is receiving a daily shock from which it may or may not emerge unscathed. I think—it is a personal view—that any piece of legislation, dealing with the killing of anybody, that purports to remove the death penalty for the taking of the life of another, intentionally and with malice, is a retrograde step. Human nature has not changed since the days of the Sermon on the Mount, and if there has been any change at all it is that material considerations offer so many greater temptations as to make the position more difficult for the average person.

I cannot follow the reasoning, for instance, of the Government in making provision for capital murder, one for which the death penalty is a probability, but no more than that, because the Bill itself says that a person shall be liable to suffer death for certain offences. I take it the person is liable to suffer death but that it is not a necessary consequence—that the Government can still exercise their prerogative. I think the Government arc making a mistake in ridding themselves of this function of the exercise of the prerogative of mercy, not enforcing the law to the full.

That is a Government's function, and when a Government rid themselves of even one bit of that function they are ridding themselves of the authority which they should retain at all times. I cannot see the reasoning as to why capital punishment should follow the killing of a policeman or a prison officer when, for instance, the person or persons who killed an unfortunate old lady with an iron bar in this city are liable to get life imprisonment only. I do not see the point of that. I think every person, whether in an official capacity such as a prison officer, a policeman, an ambassador and a Head of State or the humblest citizen, is entitled to the full protection of the death penalty as a deterrent. I cannot follow the reasoning of the Government in making this capital murder only in the case of the murder of a prison warder, ambassador, Head of State and those categories outlined in Section 1 of the Bill.

I have some experience in my profession of these matters. My business mainly, certainly under the present disposition, is to get the person off. I am not likely at any time to be afforded the privilege of handling for the Attorney General cases of this kind. In spite of all that, this would make it easy, in certain circumstances, to go into a case knowing that whatever happened no black cap would be donned. It is going to make it more easy and more casual. Further, every member of this House, every member of Dáil Éireann and every member of the public knows, particularly in regard to the reply given by the Minister in the Dáil some time ago, that the period served, especially in cases of penal servitude for life, has gone down. In some instances, where there was an alarmingly small term, it has gone down to eight or ten years, which is not a long time, when somebody is reasonably young at the time of conviction. I can visualise a young man, say, of 20, 21 or 22 years, in a fit of rage and jealousy, destroying somebody, a girl or a neighbour. That would not be capital murder under this Bill. It would be murder punishable by penal servitude for life and the odds are that before he is 30, he is out of prison. He has committed the crime and he is freed at an age when he would generally be taking on the responsibilities of life. This will tend to make people regard the killing of another as something trivial compared with what it is at present.

I concede immediately what the Minister says, that the present situation is not satisfactory. For the past ten years there has been almost automatic commutation of sentences. I do not subscribe to that. I think it was wrong that it should be automatic and that the Government on occasion should have allowed certain persons convicted of murder to hang. What about the poisoner? I wonder why the Minister—I am sure he will tell us when he is replying—has not included as capital murder the person convicted of killing by poison. People will say that that is an anti-feminine view because women are mainly the people who kill by poison. Mind you, men have done it, too, and very successfully. I think there is no form of inflicting death on another more insidious than that of poisoning. The poisoner gives no chance to his victim. It is administered slowly, and without the knowledge of the victim. It is administered without any kind of warning and the victim is never on the alert against an action of that kind so that he is a sitting duck, as it were, for the poisoner. I think the poisoner should be included in this Bill. I think also that a person convicted of the killing of a girl, or woman, in the course of, or consequence upon, an illegal operation, should also be guilty of capital murder and should be included in this Bill.

This kind of reform could more accurately be described as an effort by the Government to do something about public uneasiness which springs from the feeling that after every conviction, the person convicted will not hang anyway, that the Government will let him off. That is a situation which I should like to see prevented. The prerogative of mercy should be exercised by the Government quietly and very solemnly, and not automatically, and not in every case. The whole system has its roots in that attitude.

Another aspect of the matter is the public uneasiness engendered by the unsolved murders and that, indeed, is something in regard to which we ought to be very uneasy. Let me hasten to add immediately that I think this does not reflect any discredit upon our police force. The fault lies in lack of civic spirit in these cases. It is time we abandoned the belief that helping the police was the same as assisting the police under another régime. They are our police and they are doing their job protecting our people and property. Accordingly, they should be afforded all the help which the citizens can give them. They are our own people; they are our own brothers and sisters and they are doing their job for us.

The Minister has not gone far enough in this Bill. I should be inclined to support this measure if it included some of the things which I say it should have included. I do not at all understand why a person who kills a person doing his ordinary job of work, who batters to death somebody working in a shop or kills somebody by the wayside or because of an agrarian dispute, should, on conviction, get off with penal servitude.

This is a Bill which requires most careful consideration. It certainly got it in Dáil Éireann and I am sure it will get it here. It is a Bill which should not be put through too quickly. I would finally urge upon the House in general, and upon the Minister in particular, that the Bill should be left to a free vote of the House because it is a matter which affects us all. There are no votes in this for anybody.

This is a social matter affecting each and every one of us and there should be a free vote. I say that quite deliberately and I am sure it is a view that will be shared by people on the other side of the House. This is the kind of Bill in regard to which, really, the House should be in Committee, left to a free vote and allowed to express their views fully. I can appreciate the Government's difficulty. They want to get this measure through. If a sufficient number of people, supporters of the Government on the other side, shared my view, for instance, that the poisoner should be included, that the illegal operator who causes death should be included, or, indeed, that other categories occurring to people on the opposite side here might be included, it would go a long way towards meeting the case. After all, people in the Council of Europe are divided on the question of the retention or otherwise of the death penalty. In Scotland and Northern Ireland it has been retained. We are not so terribly different from the people of Scotland and Northern Ireland in mentality, and so on. After all, if it is retained for our brethren in Northern Ireland let us keep the same thing here.

These are my views. I shall express further views on Committee Stage. Broadly speaking, I am opposed to this Bill in its present form. I agree with the Minister that something must be done about the automatic commutation of sentences. The Government should retain that right and exercise it fearlessly as occasion demands. We have not executed anyone for a long time, the habit having grown up of extending the prerogative of mercy. That is the sort of attitude which is detrimental to the structure of the State.

I strongly urge the Minister to consider the points I have made with regard to the inclusion of extra categories for capital murder: that is, if he is retaining the distinction between capital murder and murder. In my view, murder is murder, and there is no distinction. Even if there is any distinction to be drawn, what has it been up to now? What is murder and what is manslaughter? You can come in now to defend a prisoner on a capital murder charge. You can look for murder and you can look for manslaughter. This will present a greater problem to jurors and be a greater temptation for them. Now they have a choice of three courses. They can convict a man of capital murder; they can convict him of murder, and he goes to jail or they can convict him of manslaughter in which case he goes to jail for a certain defined fixed period. In that way you are making it difficult for everyone all round.

These are my views, and any views expressed which affect the public should be personal views but, at the same time, I submit that a Government must seek some sort of framework within which to work. Here the framework for capital murder is far too narrow and too dangerous and should include the points I mentioned.

Mr. E. Ryan

I should like to welcome this Bill. I am disappointed that the Bill does not provide for the complete abolition of the death penalty but, nevertheless, I appreciate that there is a case to be made for retaining it in certain categories. If there is a case to be made for retaining it, I think that the classes which have been set out in the Bill certainly are the correct ones. I have never been able to understand the argument in favour of the death penalty. It seems to go something like this: killing is an evil thing; this person has killed someone and, therefore, we should kill him.

It seems that the community is, first of all, making a judgment about killing, and condemning it, and then deciding to do the very thing it has condemned. To me that seems to be, in principle, quite inconsistent. The death penalty, to my mind, can be justified only if there is a clear case made that it will act as a deterrent. It should not be merely that the death penalty may prevent people from committing murder. It must be the only way in which a particular kind of murder can be prevented, in so far as anyone can estimate whether it will have that effect or not.

When Senator Lindsay was talking about certain classes of murder and talking about the death penalty as the punishment, I do not think he was getting to the root of this matter. The death penalty is, I think, quite unjustified as a punishment. It is only justified if it can be shown to be a deterrent. One of the classes which will still be retained as capital murder is the killing of a warder. Of course, in that case it is quite clear that if a man is in jail, and has been sentenced to a very long term of imprisonment, the deterrent of another term of imprisonment will not be a very serious one for him. Certainly, for him the case can be made that the only deterrent that will act or is likely to act, is the death penalty. For that reason, I believe there is some case to be made for that category and the other categories mentioned in the Bill.

As I have said, it is only justified if it is a deterrent. There are certainly no statistics in this country, or, indeed, in any other country, as for as I am aware, to show that, certainly for the ordinary murderer, the death penalty has acted and will act as a deterrent. In fact, as the Minister said, in most countries, indeed in the majority of countries of Western Europe, the death penalty was abolished, not merely last year or ten years ago, but since the last century. In many of these countries with which we are very often compared, in other respects—Denmark, Holland and the Scandinavian countries—generally the death penalty has been abolished for many years, and, as I say, in some of them, since the last century. In no case has it been shown that when the death penalty was abolished, there was an increase in the number of murders committed. Consequently, it was clear that the death penalty did not have any effect as a deterrent and there was no justification for retaining it, or bringing it back.

I should just like to mention an example in another direction. The State of Texas has, unfortunately, been very much in the news in recent times. That State, in which the death penalty operates, has a population of something like twice this country. Last year there were 1,093 murders committed in the State of Texas as compared with an average in this country of fewer than half a dozen a year. The comparison is quite horrifying. Certainly, it is an indication that the death penalty—and the death penalty in America is applied rather ruthlessly— in a State where the death penalty is in force has not been effective as a deterrent. If the death penalty is not shown to be a deterrent, then we are thrown back on the fact that we are retaining it merely as a form of punishment, as a form of revenge. It boils down to the saying of an eye for an eye and a tooth for a tooth and we kill a person who kills somebody else.

I welcome this Bill. I welcome also the section dealing with the definition of malice which should go a long way towards removing or preventing situations which have occurred in the past when the question of malice, when an unusual or difficult case involving the question of malice, arose in a murder trial. I welcome the Bill and look forward to the time when it will be possible to abolish the death penalty altogether.

Professor Stanford

There is a special reason why the House should welcome this Bill. As some of us will remember, about eight years ago, on 30th May, 1956, we discussed a motion, which I had the honour to propose, suggesting that the Government should consider introducing legislation to abolish capital punishment or to suspend it for an experimental period. We had a lively and varied debate, and at the end the House passed the motion without any dissentient, which is unusual in motions of this kind. The then Minister for Justice, Mr. Everett, gave a speech which was a paragon of caution and brevity. It consisted of fewer than 200 words in which he said that he would bring the matter to the attention of the Government. Now after almost eight years we have a Bill which goes a good way towards meeting the view of the Seanad at that time.

As Senators Lindsay and Ryan have said, it could go further. In that debate we did, I think, bring out strong arguments to show that capital punishment is not a deterrent. As far as figures go right through the world—and some of us went into these figures in some detail—it is not a deterrent. In fact, I think I showed that in a certain period of years in this country there were three convictions of murder each year, showing that three at least of our citizens were not deterred by the threat of execution.

Another argument which I shall mention very briefly is that the existence of capital punishment tends to make juries bring in verdicts of manslaughter where, in fact, it is perfectly clear that the crime is murder. Out of mercy, out of fear of capital punishment, they call it manslaughter.

Thirdly—this is a big subject and I shall not develop it—there is the effect of this appalling ceremony of execution on the officials, the executioner, the prison chaplain, on everyone associated with it. It is an appalling psychological agony for them. Mr. Brendan Behan has described it, perhaps with some exaggeration. But the heart of the matter is in the various writings he has given us: it is a most shocking experience for everyone concerned. If we can avoid that primitive and barbarous ceremony, as it is at best, all the better.

Fourthly, is the effect on the newspapers. Some of the less responsible newspapers give lurid and sensational details which have a very bad effect on the morale of citizens in general.

I am tempted to develop the theme but I shall not delay the House and the Minister. If the Minister and members of the House will look up the records for the 30th May, 1956, they may find it worth their while to study the arguments used.

The Bill does not go far enough. But it gives something like the experimental period which we recommended in the House. I hope that perhaps after this experimental period, in five or ten years, we may have total abolition of capital punishment. At the moment, I congratulate the Minister on bringing in this Bill.

Mr. Cole

I have considered this Bill very seriously and I must say at the outset that I am opposed to it as it now stands, particularly the section which states that life sentence alone should be imposed in cases of capital murder. I must say I agree with a great deal of what Senator Lindsay said on this point. It is a very serious step and he rightly said that it should be studied very seriously by each of us in the Seanad. I feel that each person should have been allowed to make his own decision on it. In fact, I feel the country as a whole should be allowed to make a decision on this matter but that, I quite see, is impossible.

If the ordinary people of this country or across the water in England were given the opportunity of making this decision, I do not think that the people themselves would decide to abolish capital punishment. Senator Ryan, and to some extent Senator Stanford, claimed that it was not a deterrent. It seems to me that the very Bill itself admits that it is a deterrent because it retains capital punishment as a deterrent in certain cases. If the Minister or the Government were to take out the section dealing with a member of the police force or if it were taken out in England, the police would be very annoyed about it and would probably demand its retention for the simple reason that they regard it as a deterrent.

I cannot see the difference at all. Suppose a case arose that a member of the police force was trying to arrest a criminal and he asked a civilian—me or any other who was there at the time—to give him a hand. Suppose that criminal pulled out a gun and shot me or a civilian assisting a member of the Garda. Apparently, then it is not capital murder. If he happens to shoot a member of the police force he is convicted of capital murder. But if he happens to shoot a civilian assisting a member of the police force it will not be capital murder and he will not suffer in the same way.

To me it seems that by retaining these sections in the Bill the Government are, themselves, admitting that it is a deterrent, and quite frankly I think it is. For that reason if I can save the life of old people or save the life—it is not so very common in this country yet—of young girls or young children by retaining this penalty on the Statute Book then I will retain it and if necessary I am prepared to take away from the Government the right or difficult duty of determining whether they will exercise the prerogative of mercy or not. But simply on those grounds, I think it is a deterrent. If it is a deterrent, I would keep it on the Statute Book. I hope it will perhaps save some old person or some young girl from being murdered.

One point rather worried me in the Minister's speech. I take it that if this Bill is passed the Government will have no power to reduce the sentence of the court for capital murder to one of life imprisonment. I am looking at the last part of page 1 of the Minister's statement.

Mr. Haughey

No.

Mr. Fitzpatrick

Surely the Government would still have the right of reprieve?

Mr. Haughey

The Government in any case would still have the prerogative.

Mr. Cole

Then that brings us back exactly to the same position as that which exists prior to the enactment of this Bill. I cannot quite see the difference, in one way, between a member of the Garda and a person assisting that member of the Garda in the exercise of his duty. The post office worker protects the funds of the State to a certain extent. There are funds in a post office which cannot be banked at a suitable time.

Senator Stanford said there are no statistics to support what I am saying now. I think there probably are. I do not say the statistics in this country are very much in support of my argument. They are so small that one could not really draw a very definite conclusion from them. The circumstances at present obtaining in Britain may exist here, perhaps not immediately but in a relatively short time. At the moment, criminals come to this country from across the water and perpetrate the same sorts of crimes here in a minor way, perhaps. The statistics for Britain are interesting.

It is suggested in the Minister's speech that it is time this country got into line with a lot of other countries in Europe. He did not use that as a main argument but it was one of the Minister's suggestions that the time was ripe for doing away with this thing and for falling into line with other countries.

In spite of all the assistance and all the training lavished on criminals across the water and the much lighter sentences—imposed, probably, in the hope that when their wrong-doing was pointed out to them and they were made aware that the courts were not there particularly to impose on them savage sentences there would be an improvement in the crime position— there has been no improvement. In particular, we might be interested in violence against the person because that might lead to murder. I have taken statistics for England and Wales from Criminal Statistics, England and Wales, 1962, which is the latest volume published. I should like to give the statistics of crime there—page xliv, Appendix I. In 1938, the number of crimes under the heading of violence against the person totalled 1,583: in 1962 the figure was 11,986. The number of sexual offences increased from 2,321 to 6,068. Receiving and fraud offences increased from 5,333 to 15,310. Breaking and entry offences increased from 10,853 to 42,760. Larceny offences increased from 56,092 to 119,034. The interesting point is that violence against the person offences increased roughly seven and a half times; sexual offences increased roughly two and a half times; receiving and fraud offences rose only three times; breaking and entering offences increased only four times and larceny offences increased just over two times.

Violence against the person offences increased far more than any other type of crime. I can give the House the statistics for murder and attempted murder. Whereas the increase is not very much, there is a slight increase on the figure. At page 2, Table A, of the same volume, headed Indictable Offences Known to the Police, we get the murder statistics. For the years 1935-1939 the average number of murders and attempted murders was 183 and in 1962 the total figure was 352. In the years 1950-1954—a few years before the British Homicide Act came into force—the average figures for murder were 130 and for attempted murder 284.

There has been a considerable increase in crime. Whether we can say that the steep increase in the past ten years has in any way resulted from the passing of the Homicide Act in England or not I do not know, but in actual fact the final figures I gave for murders and attempted murders in 1962 are, in a way, slightly wrong figures because crime that previously would have been classed as murder under the original statute was not so classed in the period by reason of the Homicide Act.

Therefore the figures for 1962 would have been considerably higher if we defined murder as it was defined in the Statute Book in previous years. There is no doubt there has been a greater annual increase during the past five years than previously. Whether people will argue that has resulted from various other reasons I do not know. The statistics are there. In any case, the figures in respect of crimes of violence against the person have increased vastly, much more than any other crime in England and Wales. For those reasons I am not prepared to support the removal of this from the Statute Book and I would oppose the Bill on those grounds. If by keeping this on the Statute Book I can save the life of one old woman or one young girl I should consider myself more than justified.

Mr. Fitzpatrick

The object of this Bill is to remove from the Executive the power to take the life of a person convicted of murder except in certain restricted cases. Capital punishment is a matter on which many people hold different views and hold those views very strongly. Therefore, I agree with the other speakers who said every member of this House should be at liberty to express his own individual views according to his own convictions and his own conscience, and to vote accordingly should the necessity arise. I am glad to say that in so far as the Party to which I belong are concerned we have so decided, and any views I express here are my own personal views.

In my opinion, the state of maturity or, indeed, the degree of civilisation reached by any community or any State may well be judged by the penalties which it imposes on its citizens who violate the laws of the particular State concerned, and I think in the years to come future generations will look back on States who held on to the death penalty and inflicted capital punishment on its citizens as very backward and, indeed, uncivilised. I imagine that future generations will look on States who today take the lives of their citizens by way of punishment as we look back on the Governments of bygone days who executed people for sheep stealing or petty larceny.

I, therefore, believe that capital punishment should be abolished in its entirety. I think that the revolting post-war war criminal trials at Nuremberg, and the disgusting diabolical public execution of people there convicted is something that will stand for a great many years and, as far as history goes, will lay a blot on the people responsible for it. Sentences of that nature could only be outdone by the said war criminals.

It follows, therefore, in my opinion, that the law as it stands here at the moment is entirely unsatisfactory. As recently as 1954 a person was executed for murder here and I am sure the Minister for Justice of the day had to try to decide whether that person would be executed or whether he would be reprieved, and he had to advise the Government accordingly and the Government had to make up their mind whether the final and fatal sentence would be imposed on that man or whether that man would be reprieved and the sentence commuted to penal servitude for life.

He was executed. If he had not been executed, assuming he was a young man at the time, he would be walking about today, at large, free, because we know from figures given by the Minister in the Dáil that since 1946 or 1947, 15 persons had their sentences commuted to penal servitude for life, that the longest term served by any of those people was 11½ years, that the shortest term was three years and the average six years.

Therefore, the law as it stands at the moment, which faces the person convicted of murder with death or a comparatively short term of imprisonment —that is what the records show—is an outrageous state of affairs. I shall have more to say about the sentences later because I regard those sentences as totally inadequate, far too short.

We have been told, and I am sure we will be told again, that the present situation is satisfactory, that the death penalty is there but that it is not often used, that a reprieve is given in cases where it is merited. In considering a reprieve, human elements come into play. A lot depends on the judge who presides at the murder trial. That judge may be a man who has strong feelings against the death penalty. If he is, he will probably give a report or recommendation in favour of a reprieve.

On the other hand, he may be a judge who has very strong ideas against murder, who thinks the only way to stamp it out is to execute the people who commit it. If so, it is likely he will be influenced or prejudiced, as he is only a human being, and that he will refuse a recommendation for a reprieve. Of course, the Minister must be guided by reports and recommendations from the Garda Superintendent in the area concerned. That leads me to the belief that there is far too much of a chance coming into play in deciding an application for a reprieve.

Then, of course, there is the case of a person wrongfully convicted. That is another excellent reason why the death penalty should be abolished. It is all right to say great precautions are taken, and may be taken, but neither the jurors nor the judge are infallible. So long as they are fallible it is possible that a man will be executed and it will afterwards transpire that he was not guilty. That is a state of affairs which should not be risked in any civilised community. There are far too many unsolved murders in this country.

I am satisfied that the Garda Síochána is an efficient force of able, young, experienced men and that the force is doing everything it possibly can to solve these murders. I am also satisfied that the police force is not getting the help and co-operation it is entitled to from the citizens of this country in murder cases. I cannot help feeling that the fact that the death penalty remains on the Statute Book contributes in no small way to the lack of co-operation and to the failure of the citizens of this country to co-operate to the full with the police force. There is always the feeling, especially in rural parts of Ireland, if a murder has been committed, that the person who has committed it will be executed and that people should keep out of it. If the death penalty were abolished in toto, you would get more co-operation from the citizens. Jurors would not be so slow to convict if they felt that if they did convict there was no possibility that the person might be executed.

I should like to say, in general, that it is impossible to defend the death penalty. Everybody regards murder as the most horrible crime imaginable. Everybody regards the murder of another person as something unthinkable, as a crime against nature and as a crime against everything. Yet, the State steps in in some cases, and, in order to punish the murderer, inflicts the death penalty and takes the life of that person. It is hard to reconcile if. Certainly, it is one case where one would be justified in saying two wrongs do not make a right.

It follows from what I have said that I am in favour of this Bill as far as it goes and that I welcome it for what it contains but I think it is a Bill which lacks logic. It is also a Bill which does not seem to be based on any principle. It should go the whole hog and abolish the death penalty altogether. It is very difficult to see, as has been said in the public press and in Dáil Éireann, why a man who kills a petrol pump attendant in the middle of the night should not be guilty of capital murder but that a person who kills a detective in plain clothes outside the same building is guilty of capital murder. It is also difficult to see how the man, who robs and kills a defenceless old woman in an out-of-the-way part of the country, can get off with a short sentence of imprisonment but the man who kills an armed member of the police force is guilty of capital murder.

The Minister, in introducing the Bill at all, concedes that the death penalty is not a deterrent in all the cases in which he is prepared to abolish capital murder. How then can he say it is a deterrent in some csaes? If it is not a deterrent I think we are all agreed that no case at all can be made for capital punishment. The situation in which a man who murders another and who is imprisoned is set at large, after an average of six years, is fundamentally wrong. The law should be changed to ensure that anybody convicted of murder should be detained in prison for a minimum number of years.

According to the statistics given us by the Minister, the longest term served by a murderer in prison in this country, since the war, is 11½ years, the shortest period is three years and the average period is six years. That needs a lot of explanation and it shows that we are, perhaps, becoming too sympathetic towards the people who commit these crimes. Most of these murders are committed by young men. A man who is convicted of murder in his early twenties, and who is at large again, after an average of six years, is getting off very lightly. It may be said I am inconsistent. I am not inconsistent at all. I am against the death penalty but I am in favour of proper prison sentences as a deterrent against crimes of physical violence and against murder.

Perhaps I should have said this earlier on but it is a fact, too, that a lot of people who commit murder are mentally ill. The statistics given by the Minister to the Seanad also prove that because he said that during the period 1946 to 1952, inclusive, 82 murders were committed. Of the 73 persons who were arrested, 34 were found insane and unfit to plead. The House will understand that people who are found insane are unfit to plead or, in common language, are stark mad. They are found to be unable either to understand the charge preferred against them or to give instructions to their legal advisers to defend them. A fair summary of the degree of insanity is that it is that which constitutes inability to plead. It will be seen, therefore, that the vast majority of these people were mentally ill and, in truth and in fact, they were all subnormal. I do not believe that any man who commits murder is normal or could be regarded as such. That is another reason for my contention that the death penalty should be abolished. These people should be locked up for a sufficient length of time to make sure that they have regained their mental balance before they are discharged. That is all I have to say on the Second Reading of the Bill.

Mr. Boland

As far as the debate has gone, it has become clear that, in the first instance, this matter should have been left to a free vote of the House. I have heard different points of view on all sides of the House. I thoroughly object to this Bill and I am entirely in favour of capital punishment. I think that if a person deliberately kills he murders. If it is not deliberate it is not murder. It must be wilful murder. There is no such thing as capital murder. It is strictly murder and the person should be punished for it, whether or not the punishment is a deterrent. That is an old-fashioned view but it is mine and it is a view held by a number of people.

We must have regard to the fact that there is no such thing as life imprisonment. Under British law it meant 20 years in jail and since the war it has been 11½ years and I think the maximum sentence was 10 years. There are many people who are prepared to do 10 years in jail in order to get rid of an enemy. I knew of a case where a man killed his wife. A friend of mine in jail in Dartmoor told me about it. This man's son said to him: "Father, why do you not cut her throat?" The father said: "I never thought of that; I will." He did and when he got out after some years and was asked was he sorry he said: "I am not; I can go home now and she will not be there." I think it does not matter whether the death penalty is a deterrent or not. I note that the last person executed here was in 1954. A person who commits a murder has no right to walk about the streets, as has happened. Six years is nothing. The practice has been to just commit the murderer and he gets out after two or three years if there is a change of Government. It is no laughing matter. I know of one man who got a death sentence reduced to one of manslaughter. The court decided that and he was released after 14 months. There was a change of Government and the man could go around after he had killed his enemy. I know several cases where people were walking around after five or six years in jail. I do not think that is right at all.

I think the most horrible crime that can be committed in this country is to take a human life. Surely the case of a person who is battered to death in the course of a robbery should be included in section 1? As far as I know, such a category is included in the British Act. Two people were hanged the other day for having committed murder in the course of robbery. As regards section 2, there is no such thing as penal servitude for life. What is the value of life imprisonment? My view is that a person should pay for his crime with his own life.

One person who cares least about an execution is the hangman. All concerned except him feel badly about it. I was told about a hangman in Portlaoise who was walking up and down and when asked would he like something to eat said he would wait till he finished the prisoner off first. I think there should be some change there.

I think we ought not tell potential murderers: "Kill your man now, you are being protected by the State and it will be proved an ordinary murder." What is an ordinary murder? All murders are the same. Under the Bill "acting in the course of his duty" makes it capital murder. If he goes off duty he can be killed and then it is only an ordinary murder and the murderer will get three or four years in jail. There have been executions here, perhaps too many, but there is the importance of a deterrent. How do we know that a person will have in mind that if he kills a man he will be hanged. The fact that some have killed does not mean that others have been deterred. Therefore I say it should be left as it is and that the Government exercise their prerogative as they have done.

Miss Davidson

This Bill, I feel, must commend itself to all who believe in the dignity of human life and if I have any slight reservations in voicing full congratulation to the Minister it is because I feel, as many others do obviously, that he should have removed capital punishment entirely and not retained it for certain categories of crime.

There should be no such thing as capital punishment in an enlightened world and particularly in a country like ours where so many of our patriots died by the degrading method of hanging. Very able speakers have already given their views on this horrible legacy which has come to us from the past and I do not think it is necessary to repeat what they have said. Nevertheless, I feel it to be my duty to say a few words that may help to put an end to capital punishment wherever we can use our influence to achieve that object.

I have considered over years the problem of those who commit murder and I am very doubtful whether any person is in full possession of all his faculties when he commits such a crime, even when the crime appears to be a well thought out one. The enormity of destroying human life is such that it must involve some measure of insanity. Even in the case of suicide, self-murder, the law generally says, when recording its verdict, "while temporarily insane" or "while the balance of the mind was upset or disturbed". It is surely wrong that we should have a law to permit the hanging of a person for a crime committed while there is even the slightest doubt as to the state of the culprit's mind when perpetrating the deed.

Then we have the dreadful practice of importing a professional hangman from another country to carry out the awful penalty inflicted by Irishmen, perhaps on an Irishman, but which penalty no Irishman could be found to carry out. Many times I have thought that if our lawmakers really felt it necessary to retain this dread penalty—because it is a dread penalty —the law should be changed in some way so that no specified one or two persons would be permitted to act as executioner and so be branded as a hangman but that the awful duty should rest on each and every one of us and that the executioner should be chosen by a random selection from the electoral register. I believe that that would make every one of us realise the enormity of the act of execution and would end capital punishment for I do not believe that there is a single soul in this country who would, in the full possession of all his senses, end the life of a fellow human being with or without compensation.

I do not think the State should be permitted to do any act by way of punishment which it cannot set to rights if it should find at a later date that an error has been made. How many times have there been grave miscarriages of justice? How many innocent people have died on the gallows? Life should not be taken away by judicial process or legal sanction when it cannot be given back if the victim is proved afterwards to have been wrongly sentenced.

When the sentence is carried out, capital punishment ends the suffering and remorse of the victim but what of those he leaves behind? Some may say that he should have thought of that before he perpetrated his crime, but my point is that the crime of murder would never have been committed if he had thought, if he had been capable of coherent thought at the time of the act. Any claim that retention is a deterrent cannot be justified. Has any person, any judge or jury, the right to destroy the future lives of the innocent family of the offender by branding them the children of an executed criminal? The burden they will have to bear if he is imprisoned is a very harsh one but it may be forgotten in time, but if he is an executed criminal it will never be forgotten. The crime will haunt them for ever and will be brought up again and again over the years in the sensational papers which, unfortunately, reach so many homes.

This is a thought which has been in my mind for many years. It has been there since I tried to console a family of young children whose 16 or 17 year old brother was tearfully interviewing the late Deputy Thomas Johnson in an effort to prevent the hanging of their father who was under sentence of death. There was, however, no reprieve in that case. This was a family which had always lived in dire poverty and the chance to obtain a few pounds proved too much, too great a temptation, and probably twisted the mind of this man.

It comes far too easily for comfortable people to assert, as they did in the Dáil recently, that it is a complete illusion to say that people who yield to temptation do so only because they cannot help themselves. All are not endowed with strong or even with normal minds and if there are distressing circumstances like unemployment, poverty and hungry children even a normal mind might break. We cannot repeat too often or repeat too sincerely: "There but for the grace of God go I."

There is another thought that can haunt us in the matter of the execution of a criminal. Most of us are Christians and believe in repentance and forgiveness of sins. How can we be sure when the moment of repentance comes to a person who has committed a murder, perhaps in a rage of hate and madness, or who has perhaps killed unintentionally in a state of terror and fear and who, having been condemned to death, is awaiting the dread hour suffering in the belief, however unreasonable, that he has not had a fair trial and that everbody is against him?

In the debate in the Dáil, col. 1012, Vol. 205, No. 7, there is the statement:

It is on record that even at some of the more recent executions which took place in this country the unfortunate wretch was dragged screaming, praying and cursing to the scaffold.

How many of us would like to send a person in such a frame of mind to face his Maker?

On this point an extract from Phillips Vacation Thoughts pages 46 to 47 quoted in Capital Punishment from the Christian Standpoint may not come amiss. On page 16, second paragraph, there appears this:

Ofttimes, in the full brightness of their new-found vision, converted tribes have seen more clearly more than old professing nations the full bearings of the Christian faith. In Tahiti they met on 24th February, 1824, to frame a Constitution, and after four days' debate they unanimously excluded the death penalty from their code. One of the humble natives said in the debate:—

One reason for punishing is to make the offender good again, if possible. Now if we kill a murderer how can we make him better? But if he be sent to a desolate island, where he is all solitary and compelled to think for himself, it may please God to make the bad things in his heart to die, and good things to grow there. But if we kill him, where will his soul go?

An extract from the Dáil debates, column 1124 of volume 205, No. 8 reads:

We have heard Deputies here talking about good and enlightened people but let me tell them that a lot of these enlightened people who have taken the sting out of the punishment are overrun now by teddyboys, by gangs of murderers, and they are holding up their hands in horror. A great reason for the incidence of serious crimes in many countries has been the namby-pamby way they have been administering justice in these countries.

Murder is a dreadful crime but its horrors can be lessened by false representation to young minds. Many young people get accustomed to it by daily TV viewings, films, so-called comics and picture serials where, stripped of the glamour and the fancy dress, the gun-slinging "good" men are just plain murderers who rush around leaving a trail of victims behind them—no one says murder, no one thinks murder but it is the destruction of human life and is, therefore, murder. Yet this is the daily diet of most of our children who seek to imitate these characters. Not only do these near infants devour such scenes but, while doing so, are most likely dressed up in replicas of the murderer's outfit complete with sheath knives, imitation revolvers, etc., donated by misguided parents and relatives.

These children are having their young minds warped and made insensitive to the type of crime which can cause them to graduate from the seemingly harmless boyish hold-up with the toy gun to the real weapon and the real hold-up with its appalling consequences. Parents and others would be wise to think twice before putting the replica of a murder weapon into the hands of a child. I never could understand the Feast of Christmas and the birth of the Prince of Peace being marked by the presentation as gifts to innumerable children of innumerable and perfect imitations of weapons of war, murder and destruction. Here is something to which parents and guardians, including our teachers, might lend a thought and stress that peace has its heroes no less than war. Thus we might move towards a world without war, without violence, without murder so that the words "capital punishment" might some day be meaningless.

I am glad the Minister has brought in this Criminal Justice Bill. I am sorry he has retained the death penalty for any type of murder but I was glad to hear him say he hoped it would not be too long until he comes before us again to ask us to pass another Bill which will remove forever a barbarous penalty that adds no lustre to our Irish judicial system.

Professor Quinlan

I find the present Bill most retrograde and inopportune at a time when we have no record of executions—the last one was in 1954—and when we have a glaring record of unsolved murders. We know the uneasiness felt in all parts of the country today, particularly in the lonely parts where old people are living in isolation, when we read in the newspapers of foul deeds and murders that have gone unsolved. We read of defenceless people beaten to death in their shops. Yet, apparently the resources of our State are unable to discover the culprits. Surely there is grave ground for disquiet when we find that sort of thing happening?

It is a very poor excuse to say that the Cabinet or the Minister concerned do not want what is undoubtedly the disagreeable duty of deciding whether or not to commute a death sentence. But surely it is for the purpose of facing up to these disagreeable duties and to such situations that we have a Government?

We value men of the stamp and calibre of Senator Gerald Boland who gave such a wonderful speech here this evening. It would be well for the Minister and the Government, even at this late hour, to hearken to the words of warning and advice given by him. He speaks from experience, having been Minister for Justice for 15 years.

Over the period associated with my public life, I have been privileged and proud to meet many fine public figures —figures who shaped our history— but, of those figures, I think two stand out above and beyond all others: one was the late Senator Moylan, ar dheis Dé go raibh a anam, and the other is Senator Gerald Boland. Above all, I have valued in this House the displays of courage which Senator Boland has given from the Government benches.

I know how difficult it is for any members of a Party to speak contrary to the policy of that Party. It has happened in other countries. Such displays of courage are commonplace in the English Parliament and in other places but we have a lot to learn here. We have a long way to go before we reach those high standards. Senator Boland is pointing the way to us and is doing an inestimable service to Irish democracy by his wonderful courage and example. Tonight he spoke with the voice of experience. He spoke as a man who would not shirk a decision when it was called for even though he might wish not to have to make it. Consequently, with that advice from a man of that standing, we should leave things as they are. Anything that is in any way a deterrent to the committing of those ghastly crimes which have occurred in the last number of years should remain and I feel we should allow the penalty to stay.

I have been shocked and I hope every Senator has been shocked by the revelation that a life sentence means anything from three to six years. That surely is the reason why we have so many unsolved crimes. What are three to six years out of a lifetime? There would be some compensation in Senator Fitzpatrick's suggestion if, in return for taking away the death penalty, there were a tremendous stiffening-up on what is meant by life imprisonment.

Now everybody knows from the answer given by the Minister what life imprisonment means. Many of us up to this did not know: we took life imprisonment at its face value—a long term of imprisonment. Now we know it is only 3 to 6 years. There is a complete contradiction of the statements made by those who favour the abolition of the death penalty. They say it has not been proved in action to be a deterrent. The Minister contradicts that now when he says he wants to retain it in cases of murder of prison officers or policemen.

Obviously, a person in prison has nothing to lose by killing a policeman since all he can get is a further term of life imprisonment. Therefore, it is accepted it is not a deterrent. It certainly is not a deterrent to a murder committed in a burst of anger, but circumstances are taken into account during a trial and later are, or should be, taken into account by the Cabinet in considering whether to commute the sentence or not.

Then we come to the carefully premeditated murder, where the person makes long preparations, builds up his alibi and gets away. Why does he get away? Because he wants to escape punishment. Now he knows that even if all the careful preparations fail he has only to face three to six years imprisonment. Surely that further helps him in his planning for the crime. The death penalty is a deterrent to premeditated murder. Senator Eoin Ryan mentioned Texas, where they have the death penalty. If they did not have it, what would the figures be?

Mr. E. Ryan

Not much worse than they are.

Professor Quinlan

Certainly a thousand out of a population of between 5,000,000 and 6,000,000 is very high, but I feel sure that, with the spirit that is abroad there, the figures would be much higher were it not for the death penalty. I am delighted that this should be left to a free vote of the House, because, at last, after 7 years of membership, I have the privilege of participating in a free vote. Many times and oft have we asked for it and we have always been turned down.

The Seanad would render a great service to the vocational ideal enshrined in its constitution if we got into the habit of having free votes. I would ask the Minister to hearken to the advice of his predecessor in office, Senator Boland, and withdraw the Bill until we can at least reach a more satisfactory stage in the present state of our unsolved crimes. If he finds it necessary to bring the Bill back, I suggest he should couple with it some realistic appraisal of what life imprisonment should be, certainly not a footling 3 to 6 years. However, if he does insist on going ahead with the measure now, I hope he will afford the House the right of a free vote.

Business suspended at 6 p.m. and resumed at 7.30 p.m.

Tomás Ó Maoláin

This Bill retains the death penalty for certain murders of a political character and for the murder of a member of the Gárda Síochána or a prison officer on duty, whether the motive for the murder is political or otherwise. The Bill abolishes the death penalty in other cases.

The Minister, in introducing the Bill, made, in my opinion, a most effective case for what can only be considered a revolutionary departure in our criminal law. Although I have misgivings in regard to the extent to which the Bill goes, I shall vote for it in the hope that my misgivings are unjustified and that the case made by the Minister will prove to have been a wise and correct judgment on the issue.

The Minister said that the substitution for the death penalty, an indeterminate prison sentence, normally for life, would be adequate punishment for murder. Senators who have criticised the length of some of these life sentences which have already been imposed, appear to think that it is a positive fact that if a person is sentenced to life imprisonment it automatically follows that in two or three years he is released. This, in my opinion, is not correct as each case must be considered by the Government, whose prerogative it is to shorten the sentence, if the circumstances warrant it.

I hope, however, that since we are substituting life imprisonment as a punishment for murder instead of the death penalty in these cases the sentences will be the equivalent of life imprisonment in the future. I have a feeling, due to the looseness of modern life and the extent to which liberty has become licence in our society, that we are becoming namby-pamby, to a great extent, in many cases in relation to crime. One has only to look at the sentences imposed in the courts on juvenile criminals to see the extent to which this namby-pamby mentality has penetrated into every walk of life. I do not think that the courts are taking this matter seriously enough and neither do I think that the punishment meted out in many cases of juvenile crimes is sufficient.

My impression, from reading the interpretation which they have in the USA of life sentence, is that the best part of a man's life is spent inside the prison walls. If we are to make the life punishment alternative a sufficient deterrent substitute, then it must be made apparent from the start that that awful punishment will be the fate of anyone who breaks the law by taking a human life.

I was astonished to hear Senator Quinlan—I think it was he—suggest crime programmes on television as a reason why we should do certain things which he advocated. He forgot to add to the picture he painted—I look at those television programmes as much as anybody and I like them— that in 99.9 per cent of American television programmes dealing with crime it is shown at the end of the film that crime does not pay, the gangster is usually caught and the murderer is usually punished. I think, far from doing harm to the morale of our people, those television programmes, dealing with crime, show them very effectively and remind them very regularly, that those who would indulge in crime are only laying up a store of trouble for themselves.

Senator Miss Davidson painted a very sad picture of comforting the mother of somebody who is about to face execution. It is a pity she did not paint the other side of the picture also and speak about the feelings and the sorrow of the mother of the person who died as a result of the action of the man who has to pay the penalty for his crime.

I hope this Bill will have the desired result. I know we are moving into a more liberal and humanitarian age. I know there is a trend, throughout the world, to liberalise our criminal laws. I only hope we do not go too far and that, as a result of the humanitarian attitude which is now being put into our legal code, those who might be inclined to commit a crime, such as is provided for in this Bill, will think twice before they risk the awful fate, which is certainly equivalent to death, the fate of life imprisonment.

I think the Minister in his explanation has satisfied himself as to the doubts which I had, but, as I say, we hope that in future days the sentence of life imprisonment, when imposed, will be interpreted as strictly and as sternly as it is possible to do so, in order to ensure that nobody will take it lightly and that those who contemplate crime will realise that crime does not pay.

Mr. McDonald

I should like to state at the outset that I am opposed to this Bill on the grounds that I believe there should be equality of justice. I think it is entirely wrong to introduce either a means test or class distinction to determine whether a murder was committed or not, or whether a crime should be classified as capital murder or just ordinary murder. I believe our police force are paid and trained to live a dangerous life and that they are more prepared to meet with violence if somebody should attack them than the elderly or younger person living perhaps alone in the country who, surely, is helpless in the face of those people who set out to murder people either for gain or vice, or some other such motive.

I do not think our society should bend backwards to protect or come to the rescue of the person who has been convicted of murder. I have seen during the last year and a half more than one young girl being murdered and the reaction of the public has been one of horror. I find that if you visit a house in rural Ireland, especially if there are no men folk there, after dark —and it may be only 7 o'clock—you will find the whole place barred up, more particularly if it is a short time after one of those heinous crimes has been committed. I believe those people are convinced that persons who are proved guilty or convicted of these crimes should be given the stiffest possible sentence, or hanged, as I believe in social justice they should be.

There are people here who think that hanging is an out-of-date form of punishment. Why not modernise it and introduce, say, the electric chair as they have in some countries, or even the gas chamber? Actually, with those systems there would not be the same need for the hangman.

Mr. Haughey

That would be nice and civilised.

Mr. McDonald

It has been said here that hanging is out-of-date. If we are to have laws, they should be administered uniformly. I cannot understand why a distinction should be drawn between a member of the Garda Síochána and his family. For those reasons, I believe the State should only give to those criminals, those murderers, the same sympathy they showed to their unfortunate victims. Anyone who sets out to take another person's life must, surely at some stage, see the consequences of it. It is not just sufficient to say he did not realise it. I should like to ask the Minister whether any of these persons who have been convicted of murder, or who have been shown to be unfit to plead and committed to mental institutions, have been released or whether they are still detained as mentally unsound.

Mr. Sheldon

The subject of capital punishment is a very involved one. Deep personal feelings enter into it very much and, for that reason, I agree with those who have suggested that it is not something which should be decided on a Party basis but should be left to a free vote of the two Houses.

In regard to this particular Bill, I think the most unfortunate thing about it, from my point of view, is that it muddles the entire issue. It is quite possible to vote for this Bill because it has a special purpose, the abolition of capital punishment, and it is possible to support it because it retains capital punishment. It is quite clear from the type of things that have been said in the debate that all sorts of side issues have come in. It would have been very much clearer, and easier to know what people really think, if the Bill had proposed the abolition of capital punishment completely. I know there is an argument, and a fairly valid one, for the retention of the death penalty in the cases specified, particularly in regard to prison officers. By virtue of the type of work they do they are probably more prone to be murdered, so to speak, than the ordinary kind of human being. With regard to the Gardaí, if a garda in attempting to restrain a robber calls me to help him and I get shot it is not capital murder, but if the garda gets shot it is capital murder. When I think of that sort of thing I begin to see the absurdity of the distinction. I am sorry it comes in in this way for it clouds the whole issue. A great amount of what has been said is inconsequential. Too much thought has been given to the person who is found guilty and not so much to the person who has been murdered. From this point of view a great deal of sentiment has crept in.

The taking of human life is revolting to people. What people want abolished is not capital punishment, but murder, but this is a much more difficult thing to arrange. Senator Miss Davidson says better education of the young would do it and then she contradicts herself by saying that most of the people who murder are insane. People who are insane cannot be educated. Comics and television are blamed. People should read a few of the old outdated books where they will find out that butchery has always been the same. I do not think it upsets young people at all and a great deal of nonsense is talked about that.

One of two other points made which convinces me is the main issue—is capital punishment a deterrent or not? This, of course, is a very difficult thing to determine. From the figures quoted by Senator Cole it is quite obvious that the restriction to certain types of murder to make them capital in England and Wales has not reduced the number of murders. In other words, it could be fairly assumed from that that it had acted as a deterrent in some degree up to 1957. At the same time, figures quoted by Senator Miss Davidson showing that the vast majority of people who had been found guilty of murder were unbalanced would seem to me to show that while you cannot hope to influence the mentally unbalanced by any prospective punishment you can hope to influence those who are not mentally unbalanced.

You can start quoting statistics about unsolved murders as Senator Fitzpatrick did. He started out to show from that that people are reluctant to come forward to give evidence because if the person is found guilty he is liable to be hanged. That is not very logical because you would need to quote with it how many unsolved crimes of other sorts there are where the amount of punishment to be meted out has nothing to do with the case at all.

I want to draw some fire on Senator Fitzpatrick, too, for his reference to Nuremberg. I do not know what that has to do with the case to begin with, but I think he has got hold of the wrong end of the stick. It was a terrible thing to happen but the people who were executed after the war crimes trials had done very horrible things, things which I consider put them outside the pale of being regarded as human beings at all. I had the misfortune to see Auschwitz Camp and I must say I think hanging was too good for them, but I do not think it has anything to do with this particular case at all.

The point here is: is it a deterrent or is it not? My view is that it is a deterrent. Coming down to your own particular case you must ask: "Does it deter me?" I must frankly confess that it does deter me—the amount of punishment I would get. Whether that leaves me mentally unbalance or not I shall leave to the Seanad to judge.

Senator Fitzpatrick referred, too, to the irrevocability of the sentence of death; if you discover afterwards that you have made a mistake there is nothing that you can do about it. That is the one argument which would give me to pause, but to go on this basis that there is a fallible judge, a fallible jury, fallible counsel and fallible police would seem to me logically to lead to the conclusion that it is foolishness to have a trial at all and that it should not be restricted merely to the results of the trial. If everybody is so fallible it would be better to say that than to refer to a sentence of a particular type.

There are people, too, who are disturbed—and very rightly so—that those who have their sentences commuted get off very lightly. This, again, is a very difficult question because I presume each case has to be weighed on its merits and probably it is not at all simple when it comes down to a particular case to be harsh. It is easy to talk in generalities, to say in general terms that people should be kept in prison for a longer term, but this, again, is confusing as there are two lines of thought on whether prison is a punishment or an attempt to cure people.

I doubt whether it is a sensible thing to set out to cure somebody who has committed murder. The only way you can find out if you have made a mistake is that if somebody else gets murdered you find out that your methods were not so good. However, if there is to be any relaxation such as the Bill proposes, prison sentences will have to be themselves a deterrent.

The modern trend of thought is that people do not commit crimes because they are bad but because they have been badly brought up or something. That is in some degree true but it is funny that in the affluent age in England and Wales more crimes are committed than in the bad days when everybody was poor. It may be that the methods of detecting and punishing crime are so much improved that fewer unsolved crimes take place but I doubt that. I do not think that affluence or education has a great deal to do with it at all.

You can see by what I have said the difficulty in which I find myself. On the one hand, one does not wish to be harsh but, on the other hand, you have this doubtful question: is it a deterrent or not to have the death penalty?

On the death penalty itself a great many people, I think, are mentally upset about it because of the hanging business and that, I think, is something which could be looked into. Where such a penalty has to be carried out it should be done in the most merciful way and with the minimum of trappings which bring horror not to the person to be executed but to the people who have to take part in it. This, I think, is the distinction between civilised and uncivilised States, not the conclusion drawn by Senator Fitzpatrick that to have harsh deterrents is the sign of being uncivilised. I think it is the degree of cruelty involved in any punishment that marks the degree of civilisation.

Mr. Fitzpatrick

Surely the greater the cruelty the greater the deterrent if you like to argue that way.

Mr. Sheldon

No, people get confused. Hanging presupposes cruelty whereas that is not the point at all; it is the fact that I know that if I commit murder I will lose my own life— I admit it would have an added effect at one time if I knew I was going to be hanged, drawn and quartered.

Mr. Haughey

If you thought you were going to be caught you would not do it at all.

Mr. Sheldon

If I thought I would get away with six years—that is going too far, but there are one or two people I would not mind doing six years for.

Tomás Ó Maoláin

Have you one of the fellows in mind?

Mr. Fitzpatrick

I think the Senator is seriously toying with the idea.

Mr. Sheldon

No I am not, I am quite civilised and I certainly would not think it worth risking my own life for anybody. I am quite convinced in my own mind that execution for murder is a deterrent. The Minister shakes his head, he does not think so, but all I can judge by is that it certainly would deter me.

Another thing which came into the debate, a sentimental sort of thing, was the effect on the family of the executed person. It was held that it would be worse if he were executed than if he merely went to prison. I would have thought the terrible thing for the family would be that he was a murderer, that that would be the terrible stigma and not what happened afterwards. Whether he got six years or his life taken away, the fact that he had actually committed murder would be a stigma.

It is a pity that the whole business is so clouded by the way the Bill is worded. Capital punishment is retained for some crimes while it is taken away from others, so there is confusion of thought. Whether you are for or against it you can vote for the Bill. I am going to vote against it because I think it is important, more important than ever in a world which is becoming more and more cynical, more and more irreligious, more and more failing to look upon any sanction other than one's own present good, that society should say: there are certain things you will not do or you will suffer for them.

Mr. Brosnahan

From the speeches we have heard and speaking personally I think we all suffer from dichotomy, that division of mind, on this matter whether we are perturbed at the inconsistency of the argument put forward by the Minister. The Minister stated that one of the reasons why they were introducing this piece of legislation was to relieve the Executive of the obligation of having to remit punishment.

Mr. Haughey

I did not.

Mr. Brosnahan

The Minister stated that since 1954 it had become more or less a custom to remit the death sentence and because of that the Executive were finding themselves in the position of having to take on powers which should not be the powers of the Executive at all.

Mr. Haughey

That is more like it.

Mr. Brosnahan

Yet, when the question was asked later on if the Executive still have the power or the prerogative to remit the death senence the Minister stated they had. Where is the consistency there?

Also on the question of the principle of capital punishment, either you have a principle or you have not. If it is to be a principle, you cannot have half a principle. It should be a consistent principle dealing with all groups of people.

Mr. Haughey

The Senator would probably have said the same thing when they abolished hanging for stealing turnips in 1861.

Mr. Brosnahan

It has nothing to do with what I am saying. It is entirely irrelevant.

Mr. Haughey

It is not.

Mr. Brosnahan

Either you are against the death sentence on principle only or you are not. As the piece of legislation put forward here stands at the moment, we are for it and we are against it. As Senator Sheldon remarked, we are for it up to a certain category. As Senators have already pointed out, if we retain the death sentence for a category I think we should extend the category to safeguard more people, that is, where there is a deliberate case of cold-blooded murder which has been studied and planned over a period. Senator Lindsay mentioned poisoning. I do not think there is any case for remitting a death sentence there or in the case of the cold-blooded battering of a person to death. I admit that there are cases where it is very difficult to state whether or not the crime is more closely related to manslaughter than to murder. However, in these clear and obvious cases of deliberate murder, I do not think the people who commit such crimes should be left outside the category of those for whom capital punishment should be administered.

Many people have mentioned the nature of capital punishment. Undoubtedly, everybody must admit that hanging is a most savage procedure. There may be more refined ways of executing people, and I am sure there are, but hanging is a most savage thing. In approaching this question, we should have given it more examination. Some group of people, representative of the community at large, should have been given the opportunity to study all its social implications. One of the examinations should have been related to the act of hanging.

A member of my family happened to be chaplain to a prison in a large town in West Africa. He often described scenes to me of coming out on the scaffold with prisoners about to be executed. They invited him to come out with them and to hold them. He said it was a most distressing experience and that the prisoners actually went to pieces. In another prison in West Africa—at that time it was not a free country as it is now—the Governor was a white man and all the warders were negroes. A certain man was executed on a particular morning and his body was taken down and stretched out. The warders went in to their breakfast and right during the middle of the breakfast the door opened and in walked the executed person and the warders took him out and hanged him again. It goes to show that these mistakes can take place.

In the opinion of those who have witnessed it, hanging is a most savage procedure. If this Bill goes through, as obviously it must go through, and if some form of execution has to be retained in Ireland, the type of execution should be examined.

Senator Ó Maoláin spoke about the nature of sentences given in juvenile courts at present and I thoroughly agree with him. We are inclined to be a bit soft in that matter but to expand on that subject now would be irrelevant.

Many of us have been very disturbed at the information that a life sentence is a matter, on average, of 6½ years. To say that each case is examined on its merits does not alter the picture at all. The facts are that it works out on average at 6½ years despite an individual examination of each case. A "life sentence" is a misnomer if it means, on average, 6½ years. The title of the sentence should be changed if it is to be a sentence as ridiculously short as 6½ years.

Mrs. Connolly O'Brien

I came with my mind made up to vote for this Bill —not because I approve of it: I think it is a very badly drafted Bill and that it is full of illogicalities and contradiction. I still intend to vote for it because it is a step in the right direction but I think the Minister and the Department of Justice will find themselves terribly busy in the years to come interpreting this piece of legislation and satisfying the people about it.

I am opposed and always have been opposed to the death penalty not because I think it is not a deterrent and not by any means on humanitarian grounds but because I do not believe that anybody, Government or agents of a Government or ordinary citizen has the right to murder another person and taking life from a person is murder.

The old Mosaic law was that of an eye for an eye, a tooth for a tooth and a life for a life. The old Mosaic law was superseded by the Christian law— at least we thought it was. However, it never fully put into effect the idea of justice and mercy where murder was concerned. I do not believe the death penalty is a deterrent. It has been in use now for about 2,000 years but murder is still being committed. It is only recently that any attempt has been made to do away with the idea of the death penalty for murder.

I have always felt that a prison sentence is the best sentence for somebody who has taken away the life of a person, since we are not entitled to take away the life of any person. Therefore, the only thing we should do is remove that person from the community of his fellow citizens and make his life a repentance—punish him, give him a long prison sentence.

I was really shocked when I heard about the length of present sentences for murder. I submit that for murder there should be a life sentence and that there should be no reduction of that sentence. I do not think we should have definitions of so many different kinds of murder. Here, in the first Part of the Bill, we have provision for six different kinds of capital murder. I do not think the life of a garda or a prison officer is of such greater value that the taking of it should be punished by death when there is no such provision in respect of other citizens. If one individual in a community is so important that the taking of his life justifies the taking of life from another person, it should apply equally to everybody. Members will have read of prison riots in other countries, when mass hysteria struck the prisoners. In such cases one of the prisoners, without any intent whatsoever, could strike a prison officer and kill him. According to this Bill, because he killed a prison warder that prisoner must die because that constituted capital murder.

Mr. Haughey

No.

Mrs. Connolly O'Brien

Then when we read on we find in section 3 that is not so.

Mr. Haughey

It is not murder unless he intended to kill.

Mrs. Connolly O'Brien

The Bill provides for the murder of a member of the Garda Síochána acting in the course of his duty, or the murder of a prison officer acting in the course of his duty. That is the type of contradiction in the Bill I mentioned at the outset. Further on, we have mention of murder committed within the State for political motives of the head of a foreign State. According to that, the person who committed the murder, or assassination I might call it, must suffer the death penalty, but then it goes on to describe the type of person —a diplomatic officer, an ambassador, an envoy extraordinary, a chargé d'affaires, an embassy councillor, a secretary, an attaché. Of course, there is such a thing as hospitality but I think that is carrying hospitality too far. There are various provisions like that in the Bill which upset me. I think the Department and the Minister will find themselves in a position where before very long they will have to produce another Criminal Justice Bill which will clear up these points, taking out the illogicalities and injustices. At the moment, I think the Bill is a step in the right direction. I am against the death penalty on principle, and anything that provides a step towards its complete abolition has my support. I hope it will not be very long before we have a redraft of this Bill before the House.

Mr. Mooney

The Fifth Commandment states "Thou shalt not kill," but if we concede the interpretation given by the last Senator, then the State has no right to take life. My teaching has been it has the right and that it is not controlled by the Fifth Commandment because the State gets its power indirectly from God through the people, that it must protect the lives of its citizens. Unless there has been a change in that attitude, I believe the State has the right to take life, that it has that power from God, through the people who have elected the Government to look after the interests of the citizens.

Like other Senators, I am not perturbed that capital punishment has not been retained in the Bill in toto, being retained only in cases of the murder of prison officers and gardaí. I feel it will act as a deterrent to have it retained in these categories at least. The prerogative of mercy has been used in a number of cases over the years and I think an indication of the deterrent effect of the death penalty and its execution is that since the last execution in this country ten years ago we have had seven or eight unsolved murders, carried out by people who have got away with it, apparently. That, I think, is an argument in favour of the retention of capital punishment.

Tomás Ó Maoláin

Why?

Mr. Mooney

Heretofore, when we had executions, we did not have as many unsolved murders. When I was growing up and reading the annual reports, there was only one——

Mr. L'Estrange

The missing postman.

Mr. Mooney

Yes, the missing postman.

Mr. Haughey

It is the number of murders committed, not the number unsolved.

Mr. Mooney

Within recent years there have been seven or eight unsolved murders and it is causing considerable uneasiness. I feel many Senators are inclined to worry more about the people in the dock than the victims of their crimes. The same applies to road accidents: all the sympathy is transferred overnight from the victim to the person who is charged. I favour the retention of capital punishment for the categories mentioned in the Bill. I would even suggest the Minister might consider providing that certain road deaths might be treated as murder. Certain people should be charged with murder rather than manslaughter.

Mr. L'Estrange

They are not even charged with manslaughter.

Mr. Mooney

I should like to quote from the Irish Press for 27th January, when Mr. F. Spencer-Tucker, of the National British Motor Schools' Association spoke on this subject. He said:

Every road death should be regarded as suicide or murder unless it is proved otherwise.

I suggest to the Minister that he might incorporate in the Bill a provision that those charged in respect of road deaths would be charged with murder.

Mr. Murphy

I did not come here prepared to speak on the Bill, but after listening to the Senators and hearing their expressions of opinion, I feel compelled to say something. I shall be as brief as possible. My impression is that the Minister is quite correctly interpreting the mind of the people and the general public in regard to this matter, in abolishing, except for specific cases, the death penalty for murder. I am still convinced, in spite of hearing so many Senators speak against the Bill here this afternoon, that it is a good measure. I am surprised that there is this expression of opinion which compels me to say I am quite in agreement with the Minister. I am in agreement with him, not alone because of my personal convictions, but also because of the fact that I am nominee of the trade union movement and I have been at congress after congress throughout the years where we have adopted resolutions in favour of the abolition of the death penalty.

I cannot understand why, in modem society, it has been considered necessary to still regard the taking of life by the State as the proper and due punishment. We have another parallel in regard to road accidents. Do we regard the punishment for a road accident to knock a person down with a motor car? If somebody knocks another person's eye out, do we regard it as proper punishment to knock his eye out in turn? If a person takes a life, why do we regard it as the proper thing to take his life? If it can be shown that this is the only way to protect the citizens from murder, I think we should have to see, no matter how barbarous it is, that it should be done.

I think it has been shown, in most of the countries where the death penalty has been abolished for murder, that there has not been any increase in murders. It has not been shown that the abolition of the death penalty means there are going to be any more murders. That is my impression of a subject which I have not studied at any great length, as I suppose the House will agree. I do not think it can be said the Minister is being irresponsible in advocating and putting through this Bill for the abolition of the death penalty for murder.

There is another argument and that is that there have been so many unsolved murders in recent years. Has the death penalty meant that there have been fewer murders than would otherwise have been the case? Has the death penalty meant that murders are unsolved because of that? My opinion would be—it is simply an opinion of mine—that possibly because there was a death penalty the general public are less likely to co-operate with the Garda, that they are reluctant to do so in circumstances where they feel that by helping and assisting they will be in some way responsible for the execution of some individual. That is simply an opinion of mine but I think, in circumstances where the death penalty did not operate, that there might be better co-operation from the general public in investigations in the future.

There is one further point I want to make. It refers to road accidents. If a person knocks down somebody and kills him in a road accident the family of that person has, at least, some cover, some insurance. But we have a situation where a breadwinner can be murdered and there is no possibility of any restitution. I do not think that comes under this Bill. I should like the Minister to say whether any consideration has been given to providing that the murderer should be obliged, so far as he can, to make restitution to the family of the victim. I do not agree that we should take the life of the murderer. I think we should punish him adequately and the punishment should be such as would be a deterrent. As well as that, I think the State should put an obligation on the murderer, in so far as he can, to make restitution. Where the murderer cannot make restitution, the State should be obliged to make restitution to the family of the person whose life has been taken.

I support this Bill. I am sorry it is still considered necessary to provide for capital punishment in certain instances but, so far as the Bill goes, I am strongly in favour of it.

Professor O'Brien

This has been a very interesting debate. Personally, I must admit I had certain views at the beginning of the debate. I was inclined to moderate them while listening to some of the speeches which were made by fellow Senators, but I have come back again to my original views. The very fact that one can do that shows, first, that one may have an open mind and, secondly, that some of the speeches were very convincing.

I think this Bill, as several other Senators have said, is a good Bill. I do not think it goes far enough. In fact, my objection to it is that it should go further. I agree with Senator Eoin Ryan that the only justification for the death sentence is that it must be proved to be a deterrent and that it must be proved to be a deterrent more than any other form of punishment.

I listened to the statistics which were given in arguments in the course of this debate and I do not think it has been proved by any of the speakers that the death sentence is, in fact, a deterrent to a murderer. The figures which were given by Senator Cole were very interesting but they did not seem to me to refer to the particular point at issue. Perhaps, I misunderstood the Senator but it did not seem to me that there was any clear correlation between the figures for murder before and after the change of the law in England in regard to capital punishment. Therefore, there was not any correlation between the deterrent of the death sentence and the number of murders committed.

I think many people in the Seanad will agree that the only justification for the death sentence is that it is a deterrent and that, if the people who advocate it as a deterrent fail to prove their case, there is really no case in favour of it. The carrying out of the death sentence, in whatever form it is done, is brutalising. It is brutalising to the people who carry it out and it is brutalising to the public who take a certain amount of macabre interest in it. It certainly does fill the public press—the most sensational press—and it does arouse people's macabre interest rather more than it should.

I think, therefore, that a sentence which involves so much brutality as an execution really will not deter people any more than the terrible fate of penal servitude for life. I would have thought that some people would prefer to be executed rather than be immured in prison for life.

There is one point which has emerged from this debate on which, I think, every member of the House will agree: that is, that imprisonment for life should be strictly interpreted. I think there is general agreement in the House that a practice has grown up in this country for the very early release of people who are sentenced to life imprisonment and it ought to be checked. That, I think, is one of the things that has emerged in the debate; a life sentence should be a life sentence. If a guilty person knows he will be free to roam about after a few years will the deterrent be as great as if he knows he will be kept in prison for the rest of his life? It is arguable; it is one of the things that cannot be proved. In the case of young people, especially, the knowledge that they are going to live under prison conditions for the rest of their lives will be as strong a deterrent as the knowledge that they are liable to capital punishment.

The life prison sentence has one advantage over the capital punishment sentence. That is, if by any chance something should have gone wrong at the trial and if a person has been wrongfully convicted, the injustice can, to some extent, be repaired. But once a person has been hanged, or capital punishment carried out, there is no way to repay him if it appears afterwards that there has been some miscarriage of justice. Even in countries, such as our own and Great Britain, where the greatest care is taken to ensure fair trial, there are on record cases of the miscarriage of justice where people were hanged and it afterwards turned out they were innocent. If such people had been condemned to life imprisonment, when these facts came to light they could have been released and reimbursed or compensated by the State. The damage would not have been irreparable. Therefore, that is something to bear in mind. There is something very irrevocable about the death sentence. If it is wrongly imposed it can never be reversed, whereas the sentence of penal servitude for life can have a very deterring effect on people. If it should turn out to be wrongly imposed it can, to some extent, be reversed in the sense that the person can be released and reimbursed or recompensed and restored to freedom and society.

There is another thing which I think is not irrelevant to this discussion and which has been touched on by more than one speaker in the debate. That is, the sanity of people who commit so-called murders. Great strides have been made in recent years in this direction and the law dates back to the so-called M'Naghten Rules of 120 years ago and it is generally agreed by all professional psychologists that the law needs to be altered.

I think, at a time when there is so much discussion regarding the precise degree of responsibility for criminal actions, to say that anybody who is convicted of crime should be removed out of this world is begging a certain number of questions. There again the penalty of imprisonment for life does furnish what, I think, is sufficient deterrent and at least the opportunity is given to overcome injustice if it has been done one way or another.

There is one other point, which has been referred to in the debate. The scope of capital punishment has been greatly reduced. A discussion on this subject 150 years ago would have involved hanging for larceny or theft and all the arguments of today would have been used then. The fact is that capital punishment in the last 100 years has been confined to a small number of crimes, but there is no evidence that the numerous felonies which suffered capital punishment in the old days have been more frequent than they were. There is no correlation, as far as I am aware, in the number of crimes and capital punishment.

I would suggest that this measure is a step in the right direction. I do not think it is a last step but it is a first step and there will be similar steps in the right direction. What I hope for is that capital punishment for murder will go the same way as capital punishment for larceny and other felonies. This debate and this Bill, on which I congratulate the Minister, will register one step in the right direction. If we should abolish capital punishment altogether and with no exception and if we see in a few years that the number of murders has not increased, we may be setting an example for other countries in the world and generally reducing this perfectly heinous and almost intolerable method of punishment against which modem civilised people certainly rebel.

Mr. Haughey

I want to begin by taking up a matter referred to by the last two Senators, that is, public opinion. So far as I can ascertain it by any of the indices which are available to me, and they are usually fairly reliable, this idea of the abolition of capital punishment has been generally and widely accepted by the public. There has, as far as I can ascertain, been no volume of protest of any significance; no protests have reached me or my Department and, in so far as one can get a clear picture of public opinion, it is wholeheartedly in favour of this particular measure. Indeed, it has come as something of a surprise to me to find the Seanad in this instance is to such an extent out of step with public opinion, and so many Senators——

Mr. L'Estrange

On both sides of the House.

Mr. Haughey

——as far as I can see at any rate—lagging behind enlightened public opinion in this regard.

I should like the House to get this Bill and this measure into its proper historical perspective. I should like to recommend particularly to the House what Senator Professor George O'Brien has just said. We are dealing here with an evolutionary matter. This is something which has developed over the ages. It has been pointed out that at one time the death penalty in these islands was invoked for a variety of crimes of all sorts—for crimes which today would be regarded as trivial. Gradually, step by step, the number of crimes which attracted the death penalty was reduced until the final major evolutionary step was taken in 1861 when the death penalty was restricted to the limited number of crimes which we have today.

Senator Brosnahan said that one must be for or against the death penalty in principle. Admittedly, by the time he had finished speaking I could not ascertain whether he was for or against it.

Mr. Brosnahan

I followed your example. This piece of legislation is contradictory in principle.

Mr. Haughey

He said one must be either for or against it in principle, but that is not, I suggest, the way to approach this particular problem. In the light of the historical development of the matter it is not necessary or indeed even desirable in legislating on this matter to advocate the principle that we should have either complete abolition or nothing. I would suggest to the House that while there is an apparent illogicality in the Bill it is only apparent and I hope to be able to show that, in reality, the illogicality is not there at all.

Mr. L'Estrange

Are you using the Oxford Dictionary?

Mr. Haughey

I feel in the light of the history of this whole problem of the abolition of the death penalty that I could have come to the House with a very limited measure. I could have defended that measure as another step forward, another advance in the evolution of social thinking on this problem. But I want to claim that I do not do that and while such a step would have been a defensible one on my part I have gone much further. I want to claim that I am abolishing, that the Government are abolishing, the death penalty to all intents and purposes. In fact, the death penalty is disappearing out of our community almost as a certainty.

We are retaining it in a limited, narrow category of cases. What are they? I shall, if I may, take them in the order they have been mainly mentioned in debate. First is the murder of policemen or prison warders. Since the establishment of the State, we have never had the murder of a policeman or a prison warder in the course of their duty, other than political crimes, or the murder for political reasons of a visiting head of State. The other categories described in the Bill as capital murders are to my mind equally remote and I would hope that in the years to come they will be completely academic categories. I hope that in the fullness of time—not in my time but in the time of some successor of mine as Minister for Justice—the Oireachtas will be presented with a measure which will abolish them finally because in the judgment of the Government of that day they will no longer be necessary to safeguard the security and welfare of the State.

This Government regard the death penalty as a bad thing and, as was said by some Senators, as a degrading and brutalising thing. I think we could have no better evidence of that than the gruesome incident quoted by Senator Boland himself. If ever anybody wanted to illustrate more clearly what a degradation of human values the death penalty is he could not have hoped to do so more vividly than by the anecdote Senator Boland told us here this evening. In connection with the tragic death of the late President of the United States of America, I read that in the case of a previous assassination the general public had paid 300 dollars a seat to see the public execution of the assassin. One could go through a variety of instances of that sort to demonstrate conclusively how abhorrent the death penalty is and how, far from protecting society, it, in fact, degrades and brutalises it. Indeed, I am satisfied—and the experts agree with me on this—that it begets violence by its own act. That is the view of the Government. We think the death penalty is bad, degrading and something to be done away with.

We must also as a Government at this stage of our affairs be conscious of our duty to the nation and the safeguarding of the public welfare. We have, therefore, decided reluctantly that we must maintain the death penalty at the present time for this limited number of offences. I would suggest that in this regard we are not being illogical. For the ordinary murder the death penalty is not a deterrent because as many Senators have pointed out murder is something that is committed for a variety of reasons and it is very often unpremeditated. In the ordinary murder the death penalty is not a deterrent and, therefore, we feel it is of no value to preserve it. However, in this limited number of cases it can fairly clearly be shown, at the present time at any rate, that it is to some extent a deterrent and, therefore, we are logically justified in retaining it. In reply to Senators who have expressed fears of one sort or another that abolishing the death penalty for any particular type of crime would result in an increase in that type of crime, I want to say that the Government would not consider for one moment abolishing the death penalty for such crimes if they thought that such would be the result. It is only because we are satisfied to the extent that human reason can be satisfied that it is not a deterrent and that abolition will not result in an increase in that particular type of crime that we have decided to abolish it.

We are not unfortified in coming to this decision. We have not just our own judgment alone to go on. Before attempting to take a final irrevocable decision on a matter such as this, we have naturally carried out the widest possible researches throughout the world to see what the experience is in other countries and to see what the various expert bodies and commissions who have examined this subject have reported. I just wish to quote a typical piece of evidence which we have come across. I quote from the United Nations survey Capital Punishment published in 1962. Paragraph 197 deals with the abolition of the death penalty and the criminality curve. It states:

All the information available appears to confirm that such a removal has, in fact, never been followed by a notable rise in the incidence of the crime no longer punishable with death. This observation, moreover, confirms the nineteenth century experience with respect to such offences as theft and even robbery, forgery and counterfeiting currency, which have progressively ceased to be punishable with death: indeed, these crimes, so far from increasing, actually decreased after partial abolition.

Therefore, in so far as we could possibly assess the evidence, we were satisfied that the death penalty was not an effective deterrent and that its retention as such was not justified in regard to the general category of murder. But we did reluctantly come to the conclusion that we should retain it in the limited number of cases where it might possibly be capable of being regarded as a deterrent. That is my answer to those who say this Bill is illogical.

To those Senators who say that one can either vote for or against the Bill with impunity, I maintain you cannot. I maintain that if you favour the abolition of the death penalty you must vote for this Bill because it abolishes capital punishment to the greatest extent that we can possibly do so in our time and at this moment of our history. We may be excessively cautious. It might be possible for us to abolish it in relation to some of the categories for which we are retaining it. I would reply to any accusation of being excessively cautious by saying, as I have already said, that these categories are largely academic and that to all intents and purposes they will be of no practical effect.

I want to emphasise what I said at the beginning. To me, the criticism of Senator Quinlan was more than usually nonsensical in this regard. He stated the Government did not want to face up to unpopular, or some such words, decisions. That is not what is involved at all. The simple matter is that the decision as to whether or not a person should hang for a crime in recent years in this country has been transferred from the judicial process to the Executive sphere and that is wrong.

It is completely wrong that the Executive should be the body which decides whether or not, in fact, a person should hang for a particular crime. This is clearly a matter, first of all, for the Oireachtas in legislation and, secondly, for the courts for interpretation of that legislation.

Mr. Fitzpatrick

Will the Executive not decide how long a man stays in prison notwithstanding the fact that the court will have imposed penal servitude for life?

Mr. Haughey

I am coming to that. At the moment, I am dealing with the suggestion that this measure is being put before the Oireachtas because the Government are reluctant to face up to their responsibility in this matter. I say the Government should not have this responsibility. It is clearly something that should be decided in the due process of law and that, largely, this measure can be justified by its attempt to rectify that position.

Everybody knows that in recent years the effective decision as to whether or not a person should hang is not taken in the Four Courts but is taken in Government Buildings and that is socially and morally wrong. To the extent that the Bill rectifies that situation alone, it is to my mind completely justified.

I want to mention another point raised by Senator O'Brien in relation to the M'Naghten Rules. I agree that, in the light of modern developments, particularly in the field of psychological medicine, there is a very great necessity to review and reassess the M'Naghten Rules and, in fact, this process is taking place at present. I have asked the judges to examine the matter and to submit their considered views in regard to these rules. While it is not strictly relevant to the measure before us, the question of insanity as a defence in murder trials is, I agree, a matter of interest in regard to the subject of capital punishment as a whole.

Some people have argued for an extension of the category of crimes which will continue to attract the death penalty. No aspect of this piece of legislation has received greater care or attention than this particular aspect. We approached this whole measure with the object of getting rid of the death penalty. Then, having considered the matter, we decided reluctantly that it would have to be retained, for the present at any rate, in a certain limited number of cases. But we were determined that the limited number of cases should be the very minimum consistent with the public interest and we prepared the Bill on that basis.

We had very much in our minds the British Homicide Act of 1957 when we were coming to our decisions. I do not make any bones about saying that I think that Act is an unhappy one. I know that many people in England and Wales are very unhappy about the position in this whole matter. I do not know whether or not it is invidious for me to criticise what the British Parliament have done but I think they have made a mistake and that by attempting to extend the catgory of offences which will still attract the death penalty they have inevitably got themselves into a morass of anomalies.

One could give many instances but I shall just instance something that came to my mind when Senators were talking about including murder by poisoning in the category of offences which would still continue to attract the death penalty. It would be possible to have a mercy killing by poison. None of us in the House, with our Christian background and beliefs, would regard a mercy killing with anything but anathema, but we must realise that there are people who feel a mercy killing is sometimes a kind and humane thing to do. Would this legislature single out a person who carried out a mercy killing by poison for the death penalty as distinct from somebody who carried out a particularly brutal killing for personal materialistic motives?

These are the sort of anomalies you get into when you try to retain the death penalty for murders which are regarded as particularly heinous. I think we are on far safer ground by abolishing the death penalty entirely for what might be called ordinary murders, without any qualification or restriction except in the limited and restricted number of cases in which we do it for the general good and protection of society. It is necessary to retain it for those reasons and not because some individual thinks one crime is a more heinous type of crime than another. Indeed I am sure if I were to ask Senators to tell me what types of murder they would like included in the Bill for the retention of capital punishment, I would get as many divers opinions as there are Senators in the House.

Many Senators have spoken about the question of the length of sentences which persons convicted of murder have served in recent years. I think it is important that we should keep clearly in our minds what the real situation is in this respect.

I have here the figures for the lengths of sentences served by persons convicted of murder since 1925 and there is an extraordinary consistency in the figures right down through the years. Indeed, in recent years, there is no diminution in the lengths of sentences of persons convicted of murder. For the information of Senators, I shall go back through the years to 1926, 1927, 1929, 1930, and 1931, purely as an example, and read out the lengths of the sentences served by persons convicted of murder during those years. The figures are 6 years, 6 years, 2 years, 1 year, 7 years, 6 years, 4 years, 3 years and 2 years.

Mr. Fitzpatrick

Would the Minister tell us how many of those would fall under the category of infanticide— women sentenced for murder before the infanticide law came into effect?

Mr. Haughey

I have not got those figures, but for the information of the Senator I want to say that when Senators have been quoting repeatedly the figure of 6 years as being the average length of sentence, that figure has included at least one sentence for infanticide—that if infanticide had been left out of the figures quoted here in respect of recent years, the average sentence would be a great deal higher. I shall come on now to the years 1946, 1948, 1949, 1951 and 1954. The figures were 3 years, 5 years, 6 years, 3 years, 4 years, 7 years, 11 years and 6 years. Again, I would say it is dangerous to take averages. Looking at those figures one finds to an astonishing extent the consistency of the sentences down through the years.

What we must consider here is what is the ultimate purpose of punishment. To my mind it should be rehabilitation. If a person is convicted of a crime, committed to prison, and is completely rehabilitated—is, in the opinion of all the experts and authorities concerned, fully expurgated of his or her crime and deemed ready and fit to take his or her place in society—then it is very difficult indeed for the Government of the day to say: "No; that person must be kept in prison even though his or her further imprisonment can serve no possible use and, indeed, can only do damage to the person concerned." However, that is not something which should affect Senators voting for or against this Bill. The firmness or otherwise with which the Executive exercise the prerogative of mercy is something for the Oireachtas to take the Government to task about from time to time as a matter of ordinary administration and policy.

We cannot in this measure tie the hands of future Executives. We might all like to say that if we are to do away with capital punishment we should insist that from now on everybody convicted of murder should serve 15 or 20 years. We cannot do that. We might lay it down as a directive principle for future Executives, but we cannot tie their hands.

It is not something which should influence us one way or another in voting for or against this measure, but it is something on which the Oireachtas, from year to year, can criticise the Executive, having regard to statistics published or to the incidence of a particular crime. I should like to suggest that the House should not be too critical on the basis of the figures quoted by Senators because, as I say, the overall purpose of punishment should be the rehabilitation of the person concerned.

Mr. Fitzpatrick

I do not want to interrupt the Minister, but I do not think he is correct when he says that the figures of sentences in recent years include infanticide because, as far as my memory goes, the Infanticide Act came into force in the early 1950's.

Mr. Haughey

I do not know what point the Senator is trying to make or whether it is a political debating point, in which case, I am not interested.

Mr. Fitzpatrick

I am not trying to make any political debating points.

Mr. Haughey

Neither am I. The figures down through the years have shown a consistent attitude in this matter, but the figures Senators have been quoting as being the average figures——

Mr. Fitzpatrick

I am merely correcting the Minister when he says that the figures for the past 10 years include infanticide.

Mr. Haughey

The figures quoted here by Senators to the effect that the average sentence was 6 or 7 years were provided by me in Dáil Éireann. They do include at least one case of infanticide. In fact, the average sentence served is lower because of the inclusion of infanticide.

Mr. Fitzpatrick

With respect, I disagree.

Mr. Haughey

There is no question of disagreement. Those are the facts, the statistics.

Mr. Fitzpatrick

In the reports of the Dáil debates, they are given as sentences for murder.

Mr. Haughey

The figures are from 1946 and they include infanticide. In an important matter like this, the Senator should not resort to political tactics.

Mr. Fitzpatrick

There are no politics except what is being dragged in by the Minister. The Minister should not be so rattled.

Mr. Haughey

I should have thought the Senator has had enough politics for a while.

Mr. L'Estrange

I am surprised at the Minister. He should be in a far better humour.

Mr. Fitzpatrick

If you cannot have an intelligent debate, without the Minister getting his hair in a blaze, it is a poor state of affairs.

Tomás Ó Maoláin

Do the Senators not like to be corrected?

Mr. L'Estrange

The Minister does not.

Tomás Ó Maoláin

The Minister is correcting the Senators. The Senators do not like that.

Mr. Haughey

I have not a great deal more to say about the Bill except to recommend it to the House and to hope that in principle, at least, it will be acceptable. I think it is in line with public opinion. I think it is going as far as we can expect the Oireachtas to go at this stage of our affairs. For my part I should like to see, not now, but in the not too very distant future, the total abolition of capital punishment. Until that day comes I would ask the House to accept the Bill for what it does.

Question put.

The Seanad divided: Tá, 22; Níl, 9

Tá

• Ahern, Liam.
• Brady, Seán.
• Brennan, John J.
• Browne, Seán.
• Connolly O'Brien, Nora.
• Costello, John.
• Crowley, Patrick.
• Davidson, Mary F.
• Desmond, Cornelius.
• Donegan, Bartholomew.
• Farrell, Joseph.
• Fitzgerald, John.
• Flanagan, Thomas P.
• Healy, Augustine A.
• Ryan, Eoin.
• Ryan, Patrick W.
• Hogan, Daniel.
• Killilea, Mark.
• McGlinchey, Bernard.
• Mooney, Joseph M.
• Murphy, Dominick F.
• Nash, John Joseph.
• Nolan, Thomas.
• O'Brien, George.
• Ó Ciosáin, Éamon.
• Ó Donnabháin, Seán.
• Ó Maoláin, Tomás.
• O'Reilly, Patrick.
• Ó Siochfhradha, Pádraig.
• Ross, J.N.
• Ryan, William.
• Yeats, Michael.

Níl

• Brosnahan, Seán.
• Carton, Victor.
• Cole, John C.
• L'Estrange, Gerald.
• McDonald, Charles.
• Mannion, John.
• Ó Connalláin, Dónall.
• Prendergast, Micheál A.
• Sheldon, William A.W.

Tellers: Tá, Senators Farrell and Ó Donnabháin; Níl, Senators Cole and Sheldon.

Question declared carried.