I think it is appropriate, given the essentially non-party political nature of this Bill, that it should be initiated in this House.
This Bill proposes to abolish the death penalty and to substitute imprisonment for life. It also provides that a minimum period of imprisonment must be served for treason and certain murders.
I think, perhaps, I might begin by going a little into the background. As Senators will be aware, the Criminal Justice Act, 1964, abolished the death penalty for all but a few crimes and substituted a life sentence. The crimes for which capital punishment was retained were treason, certain murders, including murders of gardaí and prison officers acting in the course of their duty, and certain offences against military law, most of which can be committed only in time of war. As I understand it, the decision of the Oireachtas in 1964 not to go the whole way and totally abolish the death penalty for murder was based on a belief that capital punishment was likely to have a deterrent effect on those who murder for so-called political motives. The view was also taken that the Garda Síochána, being an unarmed police force, required additional protection and that the death penalty would give this protection. However, in my opinion, experience since 1964 has not borne out the views that were then expressed about the desirability of retaining it in those remaining cases. The logic that capital punishment was not a deterrent to ordinary murder but might be to capital murder is totally untenable.
Since 1964 the debate on capital punishment has continued in this country and at international level, in particular on whether it is or is not a deterrent either generally or in relation to particular murders. As far as I am aware, the studies that have been made have reached no firm conclusion one way or the other.
For my part—and I believe I speak for the great majority of people—I am completely opposed to the taking of life, whether by the State or by anyone else, and I believe that the time has now come for this country to finish the job that was begun in 1964 and to remove completely from the Statute Book the right of the State to inflict death on any person for whatever reason in the future.
I believe deeply in the sacredness of human life. The right to life is precedent to all other rights for when a person's life is ended all other rights of that person are of no further consequence. Moreover, at a time when so many human lives are being taken on this island to the near universal abhorrence of the population, it is timely that the State should give clear expression to that abhorrence by the symbolic act of repudiating its own right to deliberately take life in any circumstances. I use the word "symbolic" advisedly. For I think there was great force in the statement made by the Leader of the Fianna Fáil Party on the 6.30 RTE radio news programme on Monday, 28 September last. He said that capital punishment was, any way, for all intents and purposes gone.
Therefore, this Bill seeks merely to give expression to the reality of the situation. More than that it seeks, by very stiff jail sentences indeed, to increase the deterrent against what up to now are defined as ‘capital' murders. Above all else, however, the symbolic declaration, inherent in this Bill, that no one, but no one, has the right to deny another his life validates and strengthens the near total condemnations repeatedly made against murder.
Moreover, I subscribe to the view expressed in 1966 in the Australian and New Zealand Journal of Criminology that "brutal punishments accustom people to brutality and tend to create attitudes conductive to the commission of violent crimes".
And as was said on another occasion:
The only moral ground on which the State could conceivably possess the right to destroy human life would be if this were indispensable for the protection or preservation of other lives. This places the burden of proof on those who believe that capital punishment exercises a deterrent effect on the potential criminal. Unless they can establish that the death penalty does, in fact, protect other lives, at the expense of one, there is no moral justification for the State to take life.
In enacting this Bill we shall be joining a growing number of states that have already totally abolished capital punishment. As Senators will be aware, France recently enacted legislation abolishing the death penalty and Belgium has also introduced a Bill to the same effect. By the time our legislation has been enacted it is likely that capital punishment will be a thing of the past — at least in peace-time — in virtually the whole of Western Europe.
Abolition will also accord with recent developments in this regard within the European Community and the Council of Europe. The European Parliament in a recent resolution expressed its strong desire that the death penalty should be abolished throughout the Community and invited members to amend their legal provisions accordingly. In the Council of Europe the Parliamentary Assembly has adopted a recommendation that the European Convention on Human Rights should be amended so as to outlaw the use of the death penalty. This recommendation is being considered by the Committee of Ministers.
Reservations about this Bill have been expressed, understandably, by Garda and prison officers associations. Their reservations weigh heavily with me but, nevertheless, I am convinced—given that capital punishment is for all intents and purposes already gone—that this Bill will enhance, not reduce, the special protection rightly accorded to the Garda and prison officers.
Turning to the provisions of the Bill, abolition of the death penalty is a straightforward matter, as can be seen from the simple provision in section 1. The punishment to be substituted for the death penalty is not so straightforward and was a matter which necessitated careful consideration.
The first question that arose was whether the law should continue to treat some or all of the offences now carrying the death penalty differently, in so far as sentence is concerned, from other serious offences, such as what might be termed ordinary murder. In other words, should a more severe sentence be prescribed for them? The Government considered that, as regards the "civil" offences of treason and "capital" murder, the answer to that question should be "yes". In the Government's view there are still valid reasons why the law should mark in a most emphatic way society's denunciation of these particular crimes. These offences constitute an attack, either directly or indirectly, on the institutions of the State, prejudice the maintenance of public order and threaten the security of every citizen. And, as I have said, we must never forget the special position of our police and prison officers who are particularly at risk from violent criminals and some of whom have been murdered in the execution of their duty. For these reasons we consider that there is no alternative to providing more severe punishment for such crimes and this is what the Bill proposes.
Section 2 provides that the penalty for these offences—treason and the murders in question—will be life imprisonment. It does not necessarily follow, of course, that a person sentenced to life imprisonment will in fact remain in prison for the whole of his life. In practice, he is released earlier—initially on parole, technically called temporary release, under the powers given to the Minister for Justice by the Criminal Justice Act, 1960. If, after a period, the prisoner has fulfilled the conditions of his temporary release, the balance of the sentence would be remitted under section 23 of the Criminal Justice Act, 1951. Whether it is right that the law should continue to prescribe life sentences rather than a maximum determinate sentence or a combination of minimum and maximum sentences, leaving the actual sentence to the discretion of the court, is another, and general, question which is, I think, beyond the scope of this Bill. In the present instance the Government considered it essential that persons sentenced for treason and these murders should serve extremely long sentences and that, in order that such sentences should have the maximum possible deterrent effect, it should be clearly seen in advance that there would be no prospect of early parole or that the Minister or the Government would commute or remit the sentence after a relatively short period.
What the Bill, therefore, proposes is that in sentencing a person convicted of treason or of what is now "capital" murder the court would be required to specify a period of not less than 40 years as the minimum period of imprisonment to be served. That is provided in section 4. Section 5 goes on to provide that, during the minimum period specified by the court, the power of the Government and the Minister for Justice to commute or remit the punishment should not be exercisable. It also provides that during this period the power of the Minister to grant temporary release should not apply to a person serving such a sentence unless for grave reasons of a humanitarian nature. Moreover, any release that would be granted in such circumstances would have to be of such limited duration as was justified by those reasons.
Of course, it will still be possible for the Government to advise the President to act pursuant to the powers conferred on him by Article 13.6 of the Constitution to commute or remit a sentence in a case such as this. Short of amending the Constitution, there will be no legal obstacle to prevent that happening in the future. It is the Government's view, however, that the restriction by this Bill of the Government's and the Minister's statutory powers to act on their own in this matter will go a long way towards preventing this happening. First of all, the restriction will help to give reassurance—if such is needed—that the Government are determined to uphold the institutions of the State and to protect those who defend these institutions by providing severe punishment for those who would seek to undermine or overthrow them. It may be said that, since it will always be open to a future Parliament to repeal this Bill, there will be no guarantee that it will not be repealed. Such a guarantee, of course, cannot be given. But I believe that the restriction in this Bill on the Government's and the Minister's power to commute or remit these sentences or to grant parole will set a headline for future Governments and is likely to create a climate in which it would be very difficult indeed for a future Government either to repeal this legislation or to advise the President to remit the sentences.
The Bill proposes to allow prisoners serving sentences for the offences in question to earn the normal remission for industry and good conduct applicable under prison rules to prisoners generally. This will be deductible from the minimum period specified by the court. Remission for good conduct should not be confused with the power to remit punishment which, as I have already explained, is being restricted. At the moment, well-conducted prisoners can earn a remission of one-quarter of their sentence. Under section 5 (2) of the Bill, prisoners serving a minimum period will be treated, for the purpose of remission, as if they had been sentenced to a term of imprisonment equal to the minimum period. Accordingly, a person serving a minimum period of 40 years would be eligible to earn ten years remission, bringing the minimum period that he would have to serve down to 30 years. I should stress that this would still be a minimum period and that it would then be a matter for the Government or Minister for Justice of the day to decide whether to allow release at that stage. I realise that a minimum period of imprisonment of such a length is an exceptionally severe punishment but, as I have said, the Government believe that a firm stand has to be taken against people who are prepared to engage in attacks on the institutions of the State and to murder members of the Garda or prison officers. In the Government's view a period of 40 years — or I should say a net 30 years under the present rules governing remission for good conduct — is the minimum which would be an acceptable substitute for the death penalty for perpetrators of these crimes.
These are the main provisions of the Bill. There are, however, one or two other matters to which I would like to refer. We are making it clear by virtue of section 3 (2) that murder to which section 3 refers — formerly known as "capital" murder — will be a distinct offence from "ordinary" murder and that it will be necessary, in order that a person should be convicted of such an offence, to prove mens rea, that is to say, the necessary guilty intent, in respect of all the ingredients of the offence. In this respect the Bill follows the judgment of the Supreme Court in the Murray case. This provision is designed to ensure that a person charged, for example, with the murder of a garda acting in the course of his duty will not be convicted of the offence unless it is proved that he either knew that the victim was a member of the Garda acting in the course of his duty or was reckless as to whether the victim was or was not such a member. Paragraph (b) of section 3 (2) will, except to the extent that the Bill provides otherwise, ensure that the law and procedure generally relating to murder will apply to these particular murders. This will preserve all the usual defences to murder which the law allows and will also ensure that there will be a power of arrest without warrant for the offence.
The remaining provisions of the Bill are mainly procedural and the Schedules contain the necessary consequential amendments and repeals. Senators will see that quite a substantial number of consequential amendments are necessary to the Defence Act, 1954. That Act contains a number of provisions dealing with the trial of offences against military law by courts-martial and it is necessary to amend some of them to bring the Act into line with the provisions of the Bill. The main thing to note, perhaps, is that a sentence of life imprisonment is being substituted for the death penalty for the purely military offences, such as mutiny with violence. At present the death penalty is not a mandatory sentence for these offences. A court-martial may award a lesser punishment. It would, therefore, be inappropriate to impose a mandatory minimum period of imprisonment in substitution for the death penalty in these cases. Where, however, a person subject to military law is tried by court-martial for treason or for what is now ‘capital' murder — as he could be so tried when on active service — he will be liable to exactly the same penalties as he would be if tried by a civil court. The provisions relating to restriction of the powers of commutation or remission of sentence, as well as of parole, will also apply.
To sum up, I am putting this Bill forward as an essential measure of law reform which will complete a process begun by the Oireachtas in 1964. As I have already said, our experience since 1964 indicates that the retention of the death penalty on the Statute Book is not justified. In my opinion, mandatory long-term sentences, as proposed in the Bill, will be — at least — as effective. Moreover, abolition will bring our law into line with that of virtually all other countries in Western Europe.
But, so far as I am concerned, the overriding consideration is that abolition is right in principle and it is on that basis that I commend the Bill to the House.