Seanad Éireann debate -
Wednesday, 18 Mar 1964

Vol. 57 No. 9

Criminal Justice Bill, 1963—Recommittal and Final Stage.

Bill recommitted in respect of amendments Nos. 1 and 2.

Mr. Lindsay

I move amendment No. 1:

In page 2, between lines 26 and 27 to insert a new subparagraph as follows:

"( ) murder done by the administration of poison or other noxious substance or thing,".

My views on these matters have been already fully explained on Second Reading. The first amendment in the names of Senator L'Estrange and myself deals with a matter about which I feel very keenly. Indeed, the Minister himself, speaking on the Protection of Animals Bill, referred to strychnine being classed as the "Irish poison". In my amendment I am not confining myself to the administration of strychnine only. I am talking about the administration of poison or other noxious substance or thing by which a person's death can be brought about.

It is obvious to everybody that poisoning is the most insidious method of bringing about the death of an enemy or the removal of somebody whose presence on earth is an irritation to the person who contemplates the death. The administration of poison for the purposes I have mentioned is very easy. Admittedly, our poison laws are strict; but poison can be bought legitimately for the purpose of laying it on lands or for any other purpose for which the poison laws provide. That poison can be kept in anybody's house. Its whereabouts can be known to other people or members of the household, who can remove it from its place of hiding or safety, as the case may be, or it can then fall into other hands. In such circumstances, the administration of poison is a simple matter.

On the other hand, it is also an extremely simple matter to plead a mistake afterwards. It is extremely difficult to convict the person accused of committing a murder by the administration of poison. I know of only two cases in comparatively recent times, in one of which there was a conviction and in the other, an acquittal. I am not attempting in any way to adjudicate on either of those cases. I am talking about the general situation whereby it is made easy for somebody to cause the death of another secretly and without warning.

If an intending murderer points a gun at another or threatens to waylay him at night or writes threatening letters to him, or if an argument crops up in which blows are likely to result or guns or knives likely to be drawn, the person about to be attacked has a warning and has some way of defending himself either by fighting back successfully or, by the exercise of discretion, running away and getting out of the danger. But the poisoner can sit opposite his victim at the same table, talk trivia and calmly wait for the end of the person into whose food the poison has been put.

That is a situation which demands inclusion in the category of capital murder. I see no reason why the person destroyed in that way should not have the same protection as a policeman or any of the other classes of persons included in this section. This is not a matter on which one can say an awful lot. The very thought of it should be sufficient to make people realise the enormity of an offence committed in this way. I do not propose to weary the House by going into examples of poisoning or deal with the criminal law concerning it in this or any other country. It is sufficient that we should realise it is a very serious offence and that, if it is to be murder at all it should be murder of the highest degree, that is, in accordance with the wording of this section, capital murder.

I am well aware what the Minister's difficulty is in matters of this kind in either accepting amendments or rejecting them. I know the difficulties that lie in the way of the Parties and groups supporting the Minister in this House. These matters are already discussed in other places before they come here. If people have not raised these matters at their own Party meetings, it is difficult then for the Minister to relax the view finally fixed when these matters were discussed at Government level and later at Party level. However, in these circumstances if the Minister were disposed to grant a free vote of the House, I have no doubt that the whole of this House—certainly a majority of those in favour of capital punishment to the extent the Minister proposes to have it enshrined in this Bill—would be in favour of including murder by poisoning as capital murder.

The next amendment deals with murder in the course of an illegal operation to bring about an abortion where death results. That is also a very serious matter. In accordance with the law as it now stands, it is murder. I see no reason why the person or persons upon whom these operations might be performed from time to time —usually, indeed almost invariably, in the interest of others—should not be protected in the same full manner as a policeman in the course of his duty. All of us are aware of the circumstances in which these operations are carried out. It is bad enough that a girl or woman should find herself in a situation of that kind, having been influenced to that extent initially by the wrongdoer, but it is worse when, in circumstances of embarrassment, she is further influenced with a view to getting her to agree to submit to such an operation. Some, I know, are successful; others are not. A wrongdoer who follows up his initial wrong by using his influence to get a person to submit herself to an operation of this kind should not be in a better position—in fact, should be in a worse position—than a person who, in the heat of the moment, shoots a garda or a prison warden, or any of the other classes included in the Bill. I do not intend to elaborate on that subject, but every member of the House must be aware of the enormity of an offence of this kind.

I urge the Minister with great sincerity to accept these two amendments. If he cannot see his way to accepting them outright, I urge him to allow the House to vote freely upon them. On the last occasion when replying to my Second Reading speech on the question of poisoning, the Minister talked about mercy killing. I think I might describe him as having had his tongue in both cheeks on that occasion. I do not know whether he was referring to the incident on the Continent in relation to the thalidomide baby or something of that kind. We do not subscribe to those views in this country. In any event the Minister did not deal with my point. I was not referring to euthanasia or mercy killing, but to the deliberate removal of a human being from this earth because of jealousy or hatred or some other cause. In all the circumstances, I see no reason whatsoever why these two types of killing should not be included in the categories which will be known in future as capital murders.

Mr. Sheldon

On Committee Stage I clearly indicated my views on capital punishment as a deterrent. Since that time I have given a great deal of thought to the whole matter, and I must say I find that I have moved much nearer to the Minister's point of view since Committee Stage—not that I think my amendment widened the categories, as the Minister said. On reflection, I think that in so far as capital punishment is a deterrent at all, it is more likely to be a deterrent in the type of case which the Minister has in mind; criminals who in pursuit of their nefarious trade choose to arm themselves and so are in a position to cause the death of a garda who is attempting to arrest them. I still think a citizen who comes to the aid of a garda is in the same position as the garda, but the amendment has been dealt with. The more I think about it the clearer it is in my mind that it is only in that special type of case that capital punishment is a real deterrent.

In regard to the first amendment, I am sure we all have a particular abhorrence for murder by poisoning, probably because it is the most sneaky method of committing a murder. There is no shred of manliness about it at all. It is an appalling way to commit a murder, but I do not think capital punishment would deter a poisoner because of his peculiar mentality and the method he uses. It is obvious that a poisoner picks that method because he thinks his crime will be completely concealed. His motive is usually greed or jealousy, and I should imagine that his mind is so completely obsessed that the idea of punishment does not enter into it. Therefore I do not believe capital punishment would be a deterrent in that case.

In the case of the second amendment, I do not see that such a murder is any different from quite a large number of other cases. We have heard that there are types of killing which are not recognised as murder at all. For instance, there are people who deliberately ignore the law when driving a motor car. They cross the white line on a bend, and go over the crest of a hill on the wrong side. That happened to me twice today. There are other people who ignore the speed limit. Anyone driving a car, or any mechanically-propelled vehicle, is in charge of a lethal weapon, as we all understand. If such people deliberately break the law, and particularly when the law is very precise and other road users have a legal and moral right to expect that the law will be kept, they are not regarded as murderers, but they should certainly rank pari passu with the people with whom the Senator is concerned in this amendment. I do not see anyone seriously proposing that a person who kills because he drives at 35 miles an hour in a restricted zone should be executed for it. I cannot see that there is any more case to be made for that than for the second amendment.

Having given the matter a great deal of thought, I am inclined to believe that in so far as capital punishment is a deterrent at all, it can only be a deterrent to criminals setting out to commit a crime who take arms with them to enable them to commit the crime and escape. The sort of cool deliberateness of it makes it one case where they might be deterred if they knew they might be executed.

Mr. Cole

I fully support the first amendment. I have some doubts about the second amendment because in that case the person who would be charged with murder would not have set out with the intention of committing a murder. He would perhaps have set out knowing that there was a risk that death might result. Therefore, I cannot support the second amendment. I support the first amendment because in that case there is deliberate planning to take a life, and if there is any way of deterring that person, it should be adopted. I believe capital punishment might be a deterrent to murder by poisoning.

Occasionally, there are other murders by poison and the poison used might not be detected. In the more distant past, that was their hope but modern science can usually detect these things now. However, if a person were able to procure some poison not very widely known to medical science in this country, and deliberately procured and used it, that person used it simply because he thought it the most unlikely way of being detected. In that way, I think, such a person says: "I will not shoot this person because I am more likely to be caught and I am more likely to meet punishment." If people know that the punishment will be execution, then I think they will feel this to be a greater deterrent.

The person who sets out to poison a victim is probably a worse criminal than the person who perhaps, although armed with a gun, is attempting to resist arrest and in the heat of the moment shoots a policeman. I think that a person who plans to murder with poison deserves a greater punishment even than the person who shoots a policeman although he brought his gun with him, possibly intending to frighten and eventually shooting in the hope of escape. The poisoner deliberately planned the murder beforehand in cold blood. I am sorry the Minister takes the attitude he does in regard to the amendments. I feel it will lead to people having less regard for human life in this country.

Professor Jessop

I am sorry I missed the earlier part of the discussion on these amendments but I find myself in a difficulty about amendment No. 2—murder done in the furtherance or course of or consequent upon the attempted procurement or procurement of an abortion. In any attempt, successful or otherwise, to procure an abortion, there are two lives at stake, the life of the mother and the life of the individual that is inside her uterus. I wonder in this amendment if that is meant to include the second individual because, if so, I would have to indicate, on a technical point, that it is not always certain that that second individual is alive at any stage of the pregnancy. At least 50 per cent of conceptions end up at an early stage of the pregnancy without producing a living individual and they very often terminate without the mother knowing that she was ever pregnant. Therefore, one would have to be quite clear that what was meant here was murder in the case of a person who had died—the mother who had died in the course of an attempt to procure an abortion. I should like clarification on that, Sir.

Mr. Lindsay

My amendment includes the mother only. Naturally, I adverted to the difficulties being raised by Senator Jessop.

Minister for Justice (Mr. Haughey)

Technically, I think the position is that the killing of an infant in the mother's womb is not murder. It is only if the child is subsequently born alive and dies from something done that it would be murder.

Professor Jessop

In that case, I would express the same opinion about the second point as Senator Cole has expressed. I think that is not a sufficiently serious crime, though I think it should be discouraged by all possible means, to bring about the inevitable sentence of capital punishment.

Mr. McAuliffe

I would support the first amendment but not the second amendment. I would support the first amendment for the simple reason that it is so easy for a person to administer poison and to escape detection subsequently. For example, if a person had been attending a doctor for a heart ailment or some other illness and another person administers the poison subsequent to the visit of the doctor, it is quite likely that the doctor would issue a certificate in that particular case without a re-examination of the patient. A case like that could arise and the person who would administer the poison would have a motive and a reason for administering the poison. I think the deterrent should be there to prevent such people from taking advantage of any such occasion. In the second one, I would say that there would be no motive or intention of committing a murder. It could really be described as a tragedy that would take place as a result of extraordinary circumstances. I could not support the second amendment at all but I would support the first amendment.

Mr. Mooney

I was about to raise the same point as that raised by Senator Jessop in regard to the two lives involved. I am surprised to learn now that it is not murder legally where abortion is brought about or created. The question of a deterrent was discussed very fully in the earlier debates on this Bill. We seem now to be splitting hairs as to what constitutes a murder and what does not. My view is that anybody who takes life should get the severest penalty possible. Most murders that have taken place, with few exceptions, are planned murders. The poisoner, therefore, is no different from any other. We have to decide whether capital punishment has acted in the past as a deterrent or will so act in the future. We have the Minister talking to the effect that in the past ten years capital punishment has not acted as a deterrent. If it has not acted as a deterrent there is no point in including it in the Bill except for the purpose specified by the Minister, namely a civic guard or a prison warder.

My view is that all life is sacred whether it be that of a civic guard, a prison warder or anybody else. I feel that capital punishment has acted as a deterrent to a certain degree. Take the question of rearing children. We have to have deterrents in order to have discipline and we have to punish occasionally. As far as criminals and others are concerned, we are using kid gloves. We are taking that line in recent times. We seem to be doing more now from the point of view of rehabilitation, which has yet to prove whether it will be effective.

Someone has said that we are actually educating these so well that they will be fully-fledged criminals when they come out, knowing all the pitfalls, all the dangers inherent in committing a crime, and, therefore, able to avoid them. I am sure any who have read the debates on this Bill will be fully armed in the future because they will be fully aware of their rights and privileges. People do not regard a prison sentence in the same way as they regard the threat of losing their lives. Recently I was told about a man who has a dispute with another over some piece of land and the view was expressed that, as soon as the Bill becomes law, that man will probably take the law into his own hands, knowing that he will not be held accountable and his life demanded of him if he does a certain act.

Acting Chairman (Mr. Fitzpatrick)

The Senator is now, I think, dealing with the general question of capital punishment rather than the amendment.

Mr. Mooney

If capital punishment is not a deterrent in the case of murder, I do not see how it can be a deterrent in the case of a poisoner.

Mr. Lindsay

What about the garda and the prison warder?

Mr. Mooney

I have been reminded by the Acting Chairman that I have wandered from the amendment.

Acting Chairman

The Senator would be in order in discussing capital punishment in relation to the murder of a garda or a warder.

Mr. Mooney

I have already expressed my personal view on that. I am wholly with the Minister. He has indicated that, were it not for our history and the position in the country, he would have wiped out capital punishment in these particular categories, too. I hope that at some future date he will bring in a Bill abolishing capital punishment altogether.

Mr. Lindsay

It will be a long time.

Mr. Haughey

I shall be here for a long time.

Mr. Lindsay

One never knows, but, as long as the Minister is there, no matter how long, he will not come in here with such a Bill.

Mr. Mooney

I understand the regulations are very stringent with regard to the sale of poison. Is it a fact that, in order to purchase poison now, one must have a signature of a civic guard or call at the local garda station and be identified in the shop in which one wishes to purchase the poison? There was an unfortunate case in which a person, who was known to the shopkeeper, purchased poison for the destruction of rats; unfortunately, there were other results. I should like to know if the regulations with regard to the sale of poison are pretty stringent now. If they are, then there is no need for Senator Lindsay's amendment.

Professor Quinlan

I support the amendment. Since the last meeting, I have had an opportunity of discussing this Bill and the amendments with a number of people, a former chief superintendent, some university people and some clergymen. I have yet to find any one of these who agrees with the Bill as it stands. They all share the view that it is unnecessary. They all share the anxiety I stressed here on the last two occasions with regard to unsolved murders. The get-away technique of the murderer has been perfected to the point at which the law enforcement authorities, even with the aid of modern science, are unable to catch him. Surely the most premeditated murder of all is that by poison. There is the procuring of the poison, the administering of the poison, the planning of the disposal of the remains to avoid detection. If that does not amount to premeditation, then I do not know what does. Quite obviously, the death penalty is a deterrent. The Minister's reasoning is so devious that he actually argues that a hardened criminal, going to commit a robbery, feeling he might meet with a garda and, in the heat of the moment, might shoot him and find himself charged with capital murder, will, in future, leave his weapons at home. If a deterrent is of that value in the case of such a person, surely it is equally a major deterrent in the case of the poisoner.

We must exercise our opposition to the fullest in relation to this Bill. In present circumstances, that opposition will not achieve anything but it may curb some of the Minister's enthusiasm for this law reform and we may succeed in directing his attention and the attention of his Department to the major problems confronting us today, namely the number of unsolved murders which make such sorry headlines in our newspapers. What is sorrier still is all the publicity, identikits and so on, and the murderer escapes.

Acting Chairman

The Deputy is getting away from the amendment.

Professor Quinlan

I strongly support both amendments and I urge the mover to put them to a vote, not that we can win but we can at least register our opposition by the only constitutional means available to us.

Mr. Nash

Having given the matter considerable thought, I am opposed to both amendments. Neither will act as a deterrent or assist in the civilised development of our society. I shall deal with the second amendment first, the purpose of which is to treat as capital murder, with a penalty of death, murder done in furtherance of, or in the course of, or consequent upon, the attempted procurement or procurement of an abortion. An abortion is always committed with a view to preventing the public knowing that a certain female is pregnant or is about to give birth to an illegitimate child. Either she is unmarried or her husband is living apart from her. For either of those reasons, she does not wish the public to know she is pregnant. Someone closely attached to her, an immediate relative or the putative father, wishes to have the matter concealed. By making that capital murder, are we really creating a deterrent? Quite obviously, even if there were no penalty at all, except the publicity, this unfortunate female would not submit herself to this operation and neither would the person who has prompted her to have the operation. The mere fact that it is a criminal offence means it will be investigated in our law courts under the full glare of publicity. Everybody will know her name. Everybody will know the name of the putative father or whoever conspired with her. If there is any reasonable prospect of these parties being discovered the girl will not undergo the operation and the man concerned will not have her undergo the operation. Therefore, making it a criminal offence with the penalty of capital punishment is not a greater deterrent than imprisonment for life. There is no use in having a penalty of death merely for the sake of vengeance. As our society advances I hope we are getting further and further away from vengeance.

The first amendment requires the administration of poison to be punishable by death. The administration of poison, as has been pointed out here, is a cold calculated act. It differs from murder done in the heat of the moment. There again, by making that punishable by death, we are assuming that every criminal who administers poison is equally responsible, equally guilty, whereas one person's crime may be far more serious than that of another.

Take, for example, the case of a person who administers poison to himself, commits suicide. Most of us would hold that in three cases out of four such a person is at least mentally unbalanced, in many cases insane. However, strictly speaking, if that person did not succeed in bringing about his death, if he were caught in the act or if he were caught in sufficient time that a doctor or medical aid could be brought and he could be revived, he could be charged with attempted murder, if you like. From the moral point of view he is as guilty as if he had committed murder. From the legal point of view he has attempted to commit a crime and the view might be taken that such a person is completely balanced mentally. Likewise, in the administration of poison the person who administers it may be perfectly balanced. Therefore, having one penalty, a penalty which cannot be revoked or amended, for such crimes is contrary to natural justice. When poison is administered for the purpose of procuring death it is administered for either of two reasons. In 99 per cent of cases it is brought about because the person administering the poison wishes to make some financial gain or because the person who wishes to bring about the death is involved in some illicit affair of sex or passion. If such a person is to be imprisoned for life he will not be able to enjoy financial gain or to indulge in illicit affairs. If that person feels there is even a remote possibility of his being discovered and being prosecuted, he or she will not commit the crime. Therefore, the penalty of imprisonment for life is as effective as the death penalty.

If we pass these amendments I believe we shall merely do so for the purpose of boosting our own ego, giving vent to our inherent feelings of vengeance, which are natural, if you wish, but which are not justified. As I am not convinced the penalty of death in either of these cases would act as a deterrent or would prevent one single crime of that nature, I feel constrained to oppose the amendments.

Mr. Haughey

I have no hesitation whatever in asking the House to reject these two amendments and I would very strongly urge Senators to do so, on two main grounds. First of all, on the principle of the Bill, I believe the time has come in our society to get rid of capital punishment. Capital punishment is either a good thing or a bad thing. I think it is a bad thing and that most people believe it is a bad thing. I am prepared to retain it only in the cases where I believe it is absolutely essential to retain it at this stage of our development, for the security and protection of the State, in the very limited number of cases which are outlined in the Bill.

The proposers of these amendments and others who support them are in a very false position. They cannot make up their minds whether they want capital punishment retained or not. If we are against capital punishment on principle because of all the connotations it has, we must gt rid of it to the greatest possible extent and retain it only in the very limited number of cases where it must be retained.

It is clear and has been fairly scientifically established that capital punishment is not a deterrent in the kind of murders we are considering. The various bodies and institutions throughout the world which have investigated this matter have, with a greater or lesser degree of unanimity, come to that conclusion. If it does not act as a deterrent in this type of case, then why retain it? There does not seem to be any argument in principle or logic for its retention if it does not act as a deterrent. Surely the crime of murder by poisoning is the type of crime in which it is least likely to act as a deterrent because the poisoner, more than anybody else, hopes to get away with his crime and never to be discovered. If that is so, then in what possible circumstances could it be regarded as acting as a deterrent against that type of crime? If I thought there were any categories of murder the incidence of which the retention of capital punishment would help to keep down, then I would not abolish it at all for any such categories. But it is quite clear in these two cases that it does not act as a deterrent and, therefore, because capital punishment in itself is a bad thing, I am against any extension which is not absolutely necessary.

It is on that main ground of principle that I am opposed to the two amendments. There are other grounds for my objections. For instance, I want to point out to the House that if we do this, if we make this sort of extension, we shall get into all sorts of difficulties and all sorts of anomalous situations will arise in the future. Senator Lindsay was not quite fair to me in regard to what he said about mercy killings. When we were discussing this on a previous occasion, I said that I was sure nobody in this House would for a moment subscribe to the type of reasoning which causes a person to carry out mercy killing or euthanasia of any sort. I think we would be unanimous that that sort of mentality is completely foreign to our people but I want to point out that, if we adopted the first amendment, you could have a situation in which the death penalty would be invoked for a crime which would not be half as reprehensible or half as heinous to most people's minds as some other crime for which we were not retaining it at all.

It is possible to conceive a situation in which a person for reasons which to him were humanitarian and just and merciful would carry out a killing. All of us would reject that type of thinking but we must face up to the possibility that such a situation could arise and none of us, knowing the person's mind, would regard that type of crime as being as reprehensible as some other brutal or heinous crime for which we were not retaining capital punishment; so that if you start this sort of thing, you would get into serious difficulties and create these anomalies.

I want also to point out that this is an attempt to grade murder, to say that one type of murder is worse than any other type and therefore you are going to keep the death penalty for it. No country in the world has been able to do that successfully. The British Commission on Capital Punishment which reported in 1955, after carrying out a lengthy study of the possibilities of grading murder along these lines, concluded with regret that the object of their quest was chimerical and must be abandoned. Having gone into it carefully and at length, they decided that such grading was not possible. I fully subscribe to that view.

To support that argument, I would mention that different people have different ideas about which type of crime is more reprehensible or more heinous than another. Before this Bill was published, a learned judge of our courts wrote to me and suggested some types of murder for which he thought the death penalty should be retained. They are different categories from those proposed by Senator Lindsay. The Lord Chief Justice of Northern Ireland proposed categories which again are different from what this judge proposed to me. This is a clear case of quot homines tot sententiae but I think it is true to say that, if you start making exceptions, you will have as many exceptions in the Bill as you have Senators.

I strongly agree with Senator Nash. There is a clear indication, if we were to accept these amendments, that these types of murders are worse than other murders and therefore should attract greater punishment. That is false thinking. It involves a notion of vengeance by the State and of punishing vengefully. The State cannot do that. The community or society is only entitled to protect itself in these matters; it is not entitled to be vengeful or revengeful and say: "Because this type of murder is regarded by us as reprehensible, we are going to punish you far more than if it were some other type of murder".

There is another difficulty in regard to the second amendment, that is, that it will be difficult in the future to conceive a death from abortion being regarded as murder. The provision which is included in the Bill about malice in murder cases is that a person must intend to kill or cause serious harm and this would seem to me in most cases to exclude death caused in attempting to procure an abortion from the category of murder. Clearly in most of these cases the person committing this terrible crime would not intend the death of, or serious harm to, the woman concerned and whereas we have a rebuttable presumption about a person being responsible for the natural and reasonable consequences of his or her act, I think even so it is unlikely in the great majority of abortion cases that it would be possible to convict the person of murder at all.

I merely mention that as an additional argument against the second amendment in particular but both amendments are unacceptable, first of all, because of the principle on which the Bill is based and, secondly, because of the difficulties and anomalies which they would create for us in the future if we were to adopt them.

It always amazes me when people who should have a scientific approach to things come out with nonsensical sorts of statements. We have not got in this country any serious amount of unsolved murders. I gave figures in Sligo last week for the period of 10 years from 1954 to 1963. In that period there were 49 murders committed in this country and only six of them at this stage remain unsolved. I am not complacent about that situation. Myself or the Garda authorities or anybody concerned with the matter would never be satisfied or complacent as long as there is even one unsolved murder on our books, but I do feel that I should point out, in fairness to everybody concerned and in order to allay to some extent the public disquiet that this miscievous sort of statement causes, that our figures of statement causes, that our figures of murders remaining unsolved at this stage compare more than favourably with any other country in the world that we know of.

Acting Chairman (Mr. Fitzpatrick)

It is now 6 o'clock. Would the Seanad like to dispose of these amendments?

Mr. Haughey

I shall be finished in a moment. As it is 6 o'clock and we are about to adjourn, I shall conclude by simply asking the House to reject both these amendments.

Acting Chairman

Is it suggested that the Seanad adjourn now or would the Seanad like to dispose of these amendments before adjourning?

Tomás Ó Maoláin

Could we dispose of them now?

Acting Chairman

Will the Leas-Chathaoirleach take long in replying?

Mr. Lindsay

I do not think I need bother to reply. The Minister has made up his mind. Those supporting him in the House, with their majority, have made up their minds. If the Minister for Justice suffers from any limitation of mental process, it is that he seems to be ready at all times to accuse anybody who differs from his line of reasoning of basing everything on false premise. That, of course, will lead him into considerable trouble, as it will leave him with the poisoner and the abortioner when this Bill is through.

All this talk about deterrent is just poppycock unless there is a deterrent there. When the Minister accuses us in putting down these amendments of not being able to make up our minds as to whether we are for or against capital punishment, I want to make my mind perfectly clear. I am for capital punishment and I am for it for far more categories than he has included and in addition to the two that I am trying to include but I am prepared to go that bit of the way with the thinking that is being done in modern times by those who want to reduce the matter to categories. I do not follow the Minister at all in his line of reasoning that we are dealing with this on the basis that something is more reprehensible than another.

Mr. Haughey

I am sorry. I must apologise to the Leas-Chathaoirleach. I did not realise that he was for capital punishment.

Mr. Lindsay

I am all for it right down the line.

Mr. Haughey

Then I admit that there is logic in your position regarding these amendments but you are still wrong, of course.

Mr. L'Estrange

What about the ex-Minister for Justice?

Mr. Lindsay

I suppose it is because I disagree with the Minister for Justice that I am wrong there but I do have the comfort of knowing that his predecessor is strongly with me.

Mr. L'Estrange

After 15 years' experience.

Mr. Lindsay

I was not being unfair to the Minister about mercy killing. I merely quoted him. I did not know what he was at and I was glad that he gave the explanation. He says, in one breath, that we are all in principle against any effort to take away life through mercy killing but, nevertheless, there might be a situation in which it would be found that it was a mercy killing rather than a murder. In those circumstances we want to provide the lollipop through this Bill as a let out for the person lucky enough to establish it as a mercy killing rather than plain murder, and no more about it.

I do not follow at all his reasoning when he says that, if he includes this, he might find others and it would lead us into peculiar anomalies.

The Minister is very fond of talking in generalities, fond of saying, "It is well established", "It is clearly established", "It is well recognised", "All the people in all the countries where this question has been considered have come to the same conclusion." Does he not know that in England the system where certain categories were put into what might be called the "soft pedal class", that is, the class carrying penal servitude merely and not carrying capital punishment, has been most unsuccessful and that crime in those categories is on the upgrade in England at the present time and that the English authorities, both in the Office of the Attorney General and in the Office of the Director of Public Prosecutions, are extremely worried about the situation and are full of regret that they ever reduced the matter to categories at all?

The Minister would have done better if he had come into this House and said: "I am going to abolish capital punishment, whether you shoot civic guards, warders, diplomats or even myself. There will be no more capital punishment", rather than come in here and reserve capital punishment for murders of policemen, warders, diplomats and various people of that kind and murders for a political motive. I do not see why such murders should carry capital punishment, why it should be retained for these because, remember, the life of a Minister or the life of a diplomat, visiting or otherwise, or the life of a guard, is not one whit more important than the life that is taken by the poisoner or the life that is taken by the performer of an illegal operation. It is for that reason that I want the deterrent there for all of these performers in whatever sphere they choose to operate.

There is too much namby pamby business going on. The Minister will discover that he is making a mistake as time goes on. I hope that I will be proved wrong in making that assertion but nevertheless I make it with more confidence than misgiving.

I regret that, having regard to the way I think on these matters, I must force the House to a division on both of these amendments. They can be decided in one division if the House so wishes rather than lose time. A matter of national importance in our criminal code that affects the whole of our community cannot be left to one Party. It cannot be left to one Party to decide which category carries the capital charge and which category does not. I do not think for one moment that a matter of this kind should be decided in the Government Party room. I do not think it can be decided in the Government Party room that the poisoner will go to jail for life and the person who shoots a civic guard must hang, unless some other means are devised in the meantime instead of hanging. Accordingly, I press the amendment.

Acting Chairman

Is amendment No. 1 being pressed?

Mr. Lindsay

Yes.

Professor Jessop

Are we taking the two amendments together, Sir?

Acting Chairman

No. I consider that, having regard to the trend of the debate, it is necessary to take a separate decision on each amendment.

Amendment put.

The Committee divided: Tá, 7; Níl, 35.

Tá

• Carton, Victor.
• Cole, John C.
• L'Estrange, Gerald.
• Lindsay, Patrick J.
• McDonald, Charles.
• Quigley, Joseph.
• Quinlan, Patrick M.

Níl

• Ahern, Liam.
• Brady, Seán.
• Brennan, John J.
• Browne, Seán.
• Costelloe, John.
• Crowley, Patrick.
• Davidson, Mary F.
• Desmond, Cornelius.
• Donegan, Bartholomew.
• Farrell, Joseph.
• Fitzgerald, John.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Healy, Augustine A.
• Hogan, Daniel.
• Jessop, W.J.E.
• 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.
• O'Sullivan, Ted.
• Ross, J. N.
• Ryan, Eoin.
• Ryan, Patrick W.
• Ryan, William.
• Sheldon, William A.W.
• Yeats, Michael.

Tellers:—Tá: Senators L'Estrange and Quinlan; Níl: Senators Farrell and Ó Donnabháin.

Amendment declared lost.

Acting Chairman

Is amendment No. 2 being pressed?

Mr. Lindsay

Yes. I move amendment No. 2:

In page 2, between lines 26 and 27 to insert a new sub-paragraph as follows:

"( ) murder done in the furtherance or course of or consequent upon the attempted procurement or procurement of an abortion,".—(Senator Lindsay.)

Amendment put and declared lost.

Question: "That the Bill be received for final consideration" put and agreed to.

Business suspended at 6.20 p.m. and resumed at 7.30 p.m.

Question proposed: "That the Bill do now pass."

Professor Quinlan

I wish simply to say I have been honoured by the Minister's statement that I have been unscientific in mentioning the unsolved murders about which everybody knows. If that is what the Minister calls unscientific, I am honoured to accept it, but when it comes to science, I challenge the Minister or anyone of his standing. Reading the importance the public attach to what we have been reading in our newspapers over the past months, when it comes to logical argument, it is basic evidence of the weakness of logic when one steers off a case by assuming, as the Minister does, that he alone is the sole arbiter of logic in this House.

The sole logic of this Bill and of the arguments against it was that in retaining the death penalty there was no tribunal, no court at all in which one could have the penalty retained. It was assumed here that all categories were to be executed, whereas in the first instance, we have the courts, and then we have the Cabinet prepared to do their duty and to consider carefully the cases that come up. There has not been a murder since 1954.

Mr. Murphy

A murder since 1954?

Professor Quinlan

An execution. I wish, therefore, to be recorded as dissenting in the strongest possible manner from this Bill.

Mr. Lindsay

I wish merely to express my disappointment at the manner in which the Minister received what was intended to be wholly constructive criticism. To my mind, he has made a mistake in tampering with a situation that could have been helpful. What was necessary here was a review of the manner in which sentences of death were automatically commuted by the Government.

When I say Government, I do not mean any particular Government: I mean that from 1954 or thereabouts there has been no execution, as Senator Quinlan has said. That may well have been the correct approach in all of those cases, but it brought about a degree of cynicism towards the law and towards the administration of the law that was in all probability thoroughly justified. In Government, or in the control of any Department at national or local level, one must always beware of breeding cynicism or contempt of that kind for the Establishment or for established rule of law.

That is what was necessary here— that it should be made known that if ever sentence were commuted, the Executive were firmly resolved to retain for themselves the prerogative which they have enjoyed and in all cases, under all Governments I would say, rationally exercised. That is the reason why this Bill is of great moment: this is tampering with the situation fraught with danger. Earlier in the evening, I used the phrase "namby-pamby" for want, simply, of a better phrase which I could not find at the time. It is that softness of approach, that misplaced pity, which has become such a feature of post-war life that has crept into all spheres of public activity.

We must all be gentlemen, we must rehabilitate, everything we do must be designed to create a deterrent: punishment is out, we must not have punishment any longer. Well, we have the old saying of: "Spare the rod and spoil the child." I submit the Minister is making it easy for the people who believe in the opposite of that concept. If Senators will only direct their minds to the situation that has arisen during the post-war period in relation to crime generally, they will see an almost remarkable change, a forbidding and terrible change. If you drive, cycle or walk along the streets—indeed, it often happens in the country, too—people will not even leave you the right of way. Some fellow with drainpipe trousers and a haircut not invented by God nor man will stand in your way and defy you to brush him with the wing of your car or to even pass him by. Any kind of soft pedalling at this time is dangerous. I want to warn the House, with such experience as I have and such observation as I have been able to exercise, that the time has come in law reform in relation to crime not for soft pedalling, not for the abolition of capital punishment, not for the reduction of sentences, not for rehabilitation in the soft sense of the word, but for a stern application of the law to the wrongdoer. Anybody responsible for provisions of this kind, making it easier, making it less frightful, making the future not so forbidding for the wrongdoer is doing a great disservice to the nation and its citizens.

I put down the two amendments we had on the last Stage with a view to widening the categories, not because I do not believe in capital punishment. I have already said I do. I would have had far more categories included, but after a careful examination of the law books dealing with various kinds of crimes, I selected these two as the ones I regarded as most heinous and which required a deterrent if crimes ever did. The man who shoots a policeman or injures a prison warder in an effort to escape does not start his operation with a view to killing. That is where the "guilty mind" comes in. He kills only in an effort to get away. It might be successfully argued that the killing was never accompanied by malicious intent, and in cases that has been successfully argued.

I do not believe this argument of a deterrent is a good one in so far as it is applied in certain cases here. You notice that only the Establishment is protected—the police, the prison warder, the person killed for political motives, some Minister or visiting dignatary from a foreign State. It is within that narrow confine we have reserved capital punishment. If I thought for one moment that the abolition of capital punishment altogether would meet the situation, I would be the first to accept it. But I do not believe it, and I do not believe it has been found so effective that it has become apparent only in the past 15 or 20 years. Admittedly, there have been down the years suffragettes and liberal-minled people from all walks of life, but only a small minority in all countries, campaigning for the abolition of capital punishment on the ground that it is a barbarous act accompanied by torture, suffering and cruelty and that nobody has a right to sever, as it were, the soul from the body, not even the State. But that right has been given to the State. It is given in time of war and in time of peace to every State.

What I think is fundamentally the worst feature of this Bill is that it follows in the main its English counterpart. You are dealing with a different kind of people. You are dealing with the Anglo-Saxon in one case, and with the Celtic temperament in the other. You are dealing with two different kinds of people. In all legislation we have copied, not slavishly but lazily, without making proper assessment of the conditions governing our people and the particular temperament with which the law makers have to deal as well as those who administer the law. I am not surprised that the Minister received a letter from a judge of our courts wishing to include categories other than those I wanted to include, and I am not surprised that Lord MacDermott, the Chief Justice of Northern Ireland, had still further categories to add.

Acting Chairman (Mr. Fitzpatrick)

I do not think the Senator can advocate the inclusion of something not in the Bill.

Mr. Lindsay

As one who is extremely anxious to uphold the law, I suppose I had better accept the ruling of the Chair at once. Those are the thoughts that occur to me at the passing of this Bill. I hope the Minister has not made a mistake, but I am afraid he has. I hope the people who supported him tonight in excluding the poisoner and the abortioner from capital punishment will not regret it. Most people are human enough to like to prove themselves right. In this instance I should like to see myself proved wrong. It is because at this present time I am so convinced that I could not be proved wrong, having regard to the circumstances of our times, I took the stand I did on these two amendments and on this aspect of the law.

I want to get clarification from the Minister on two matters. I want to know if the section on malice interferes in any way, however slight, with the doctrine that every man is innocent until he is proved guilty, and that at no time in the course of a trial shall the onus be cast upon a prisoner to prove himself innocent. Secondly, is it the intention of the Government that when a person is convicted of murder simpliciter, and sentenced to penal servitude for life, the sentence will be served in full without any interference by the Executive? Will the Executive still retain the right to commute the sentence passed on a man or woman found guilty of capital murder?

Mr. Crowley

I am glad the House has so far approved this Bill. I am quite convinced that the retention of capital punishment in any stage of our development has never been a serious deterrent against the crime of murder. I say that deliberately and honestly from my heart because I believe it. I have the greatest respect for Senator Lindsay, but his contentions seemed to me to contradict themselves. If, as Senator Lindsay suggested, we now have a new type of lawbreaker emerging, or the evolution of some new type of social problem, surely the fact that we have such a problem to deal with is the answer in itself to Senator Lindsay's point? If we are left with this problem, is it not obvious that we are left with it after a long period of years in which we have had the right to call for the exacting of capital punishment?

Mr. L'Estrange

We have not had it for ten years.

Mr. Crowley

It was there. We have not used it.

Mr. L'Estrange

They knew it would not be used.

Mr. Crowley

If we are left with a problem of that sort, it appears that we have not done our duty in the matter or that we have not taken serious enough notice of our responsibilities in that connection. Any person who is convicted of any serious crime—and above all, the crime of taking a human life—should be punished with the full power, majesty and force of the law. Unless the State demands and exacts the full penalty of the law, every member of the House will have contributed, indirectly perhaps, but very seriously, to a most serious omission. I hope neither the Minister nor any member of the House will find himself in that position.

Mr. Haughey

I had not intended to say anything at this stage, but Senator Lindsay has directed some specific questions to me which I feel I should answer. Let me say, first of all, that I am glad Senator Lindsay referred to something we talked about in the early stages of the debate, that is, the situation in which the Executive have been placed in recent years. This measure probably owes its existence to the unsatisfactory situation to which Senator Lindsay referred, in which we had the courts, with all the dignity and solemnity which surrounds a murder trial, solemnly pronouncing sentence of death, while practically everyone was aware of the fact that it was most unlikely that that sentence would be put into effect. As the years went by, it became more and more certain that the death sentence would be commuted.

I agree with Senator Lindsay that that was an undesirable state of affairs, that it was bringing the law into contempt and making a mockery, to some extent, of our courts of justice. It was as much that as any other factor that induced the Government to bring forward this Bill and to consider the whole proposal to abolish capital punishment. I think our experience in this regard will be the same as that of all other countries who have taken this step at different times in their history. As a rule, countries approach this problem nervously and are worried about the effects of the abolition of capital punishment. They are nervous that it might lead to increased crime, but they find, as the years go by, that it has no such effect at all. We all know the story of the famous English judge who said that he thought the entire constitution of England would be subverted if capital punishment for larceny were abolished. He probably believed that at the time, and was sincere in that belief, but it shows how fallible people can be when dealing with a problem of this nature.

I feel that in this Bill we have a very good measure. As I said at the outset, we are abolishing capital punishment to all intents and purposes. We are retaining it for a very limited and exceptional category. I would say that almost to the extent of 99 per cent we have, in fact, abolished it. I am not in any way nervous of the outcome. As I said also at different times during the debates on this Bill, if the Government thought for one moment that the introduction of this measure would have an adverse effect on the volume of this type of crime, they would not have considered it. It was only when we were satisfied, to the extent to which human intelligence can ever be satisfied in these matters, that it would have no such effect, that we decided the time had come in our affairs to take this step.

Senator Lindsay was worried about the section dealing with constructive malice. I think his fears are groundless. That is a matter to which we gave a great deal of thought, and into which we put a great deal of research. We did not confine our research to this country. So far as we could, we sought the best opinions of jurists abroad. I think I can satisfy Senator Lindsay by saying that we are assured that subsection (2) of section 4 merely restates the law as it is at present. Senator Lindsay will agree with me when I say that if such a fundamental change as he suggested were to be made, it could only be done—when you take the whole corpus of common law and force of precedent into account—by putting an express provision to that effect into the Bill. We have not done that. I am satisfied that this subsection simply gives statutory effect to what is the law at present.

I am afraid I cannot give the House any sort of satisfactory assurances as to the exercise of the prerogative of mercy by Executives in the future. The Government will still have, in the case of capital murder, the right to commute the sentence to one of life imprisonment.

With regard to the length of sentences that prisoners with death sentences which have been commuted should serve, there is not very much that I can say. I have already mentioned that it will go out from this House very clearly that the overwhelming majority of Senators are not satisfied that murderers whose sentences are commuted serve long enough at present. I think future Executives will have to have regard to that sentiment and opinion as expressed here. As against that, they will have to have regard to ordinary human considerations.

As I mentioned before, when a prisoner in one of our jails has satisfied all the competent authorities that he is fully rehabilitated and is fit and ready to take his place again in society, without any danger whatever to that society, I find it very difficult to believe that anybody in this House who is given the responsibility of deciding such an issue would insist that such a person should continue to be imprisoned if continued imprisonment would cause deterioration in his moral and physical condition. I cannot say what future Executives will do. All we can hope is that they will decide each particular case coming before them in the light of the considerations I have mentioned.

When this sort of case comes before the Government, the Government are armed with the fullest possible information about it. They are given complete details of the original crime, how and where it was committed, the motives, and the remarks, if any, of the judge in imposing the sentence. All of these things are fully put before the Government and then all the subsequent history of the prisoner—reports from all the competent officers concerned. Finally, on the basis of all this information and evidence, the Government must take their decision whether or not to release the prisoner on the basis that he has paid his debt to society and that he can safely be allowed back into society as a fully rehabilitated person.

I do not think we can do more than that. I think we shall just have to hope that future Governments will do their duty in this regard. This is an executive act of Government. It is one for which this House or the Dáil can take the Government to task at any time if it feels the Government are being over-liberal in the use of their power in remitting balances of life imprisonment sentences. I cannot give the House any specific assurances but that is the situation as I see it.

In conclusion, I want to thank the House for the reception it has given the measure and for the constructive and valuable criticism which it has received here in the Seanad.

Question put and agreed to.