First, I thank the Senators for their contributions to this important debate. I apologise for my inability to be in the House for earlier contributions. I had to make special arrangements to be here today because, as Senators will be aware, a debate has been going on in the other House.
I was interested in the point made by Senator O'Rourke when she queried whether the Government were motivated by political expediency or genuine regard for freedom of conscience when they introduced this Bill. She suspected the former motive, but she contradicted herself in the same breath when she referred to the Athlone coalition. May I ask her what motivated the Opposition when they decided to oppose this Bill? Was it political expediency or concern for civil freedom? Who directed the Fianna Fáil Party to vote against this Bill? Is it that there is no confidence in the Fianna Fáil Party? Is it that there are among their members people willing to take life? Or is it mere political expediency? Do they realise that if there is to be a whipped vote here today it will be the first whipped vote in any house of Parliament in Western Europe—that every country in Western Europe has abolished the death penalty by a free vote of all its members? Is it not a matter of great shame that every Member of this House should not be allowed to vote according to his or her conscience on a matter of life and death? Is there not something terribly wrong with our political system that we can never rise above party politics? Are there no issues on which people are allowed to exercise their conscience? Not apparently in the Irish Parliament, but yes in every other parliament in Europe. We have this recent precedent in the French Parliament when a Government Bill was introduced. The Government Deputies were allowed a free vote, the Opposition Deputies were allowed a free vote and it was carried by a greater than two-thirds majority. We ought to reflect and come to the conclusion that there are issues which are not properly party political matters. In the very opening sentence of my introductory speech I said that this was an non-party political issue, but that, unfortunately for this country, it has been made so and has been reduced to that level. What motivated the introduction of this Bill is an abhorrence of taking of life by anybody in any circumstances- —that is what motivated the introduction of this Bill and nothing else.
I would now like to deal with the arguments put up by the Opposition who are the only people who have opposed this Bill—not one Independent Senator has been attracted to their cause; nobody from the Government benches have been attracted to their cause. The central theme of their approach is that, while they are against the death penalty, they believe that the Government are wrong to bring the Bill forward at this time. Now is not the opportune time, they have said, because of the level of violence in our society. That point has been made throughout the debate today by several Senators, including Senator Hanafin, who was the last speaker. He cited this terrible experience and he named the gardaí who were killed "on the lonely country roads in Roscommon and Wexford". I want to take this opportunity to say how grieved I am and, I am sure, every Member of this House is that such a thing could have happened, how grieved I feel about their families, their widows and their children. What I would like to tell Senator Hanafin and the House is this that when we had the death penalty on the Statute Book it did not deter those sort of criminals and that is one of the very strong arguments in favour of abolishing this barbaric punishment that remains in our legislation. If it was a deterrent those gardaí would never have been killed. On the other hand, so long as we retain on the Statute Book this penalty we do a disservice to the State. We are undermining life, we are justifying taking life and we are making it easier for those criminals to take life.
The proposition that it is wrong to abolish the death penalty now can only rest on the supposition that its retention at this time would serve some useful purpose. Implicit in this is the view that capital punishment has a deterrent effect, otherwise the argument would be meaningless. And may I say, as many Senators have said, that the evidence either way is not conclusive?
I cannot stop people who wish to do so from believing in the deterrent effect of capital punishment — indeed it was once and may still, in general terms, be quite a respectable viewpoint — but I can say to those who do believe in it that there are no longer present in this country today the necessary preconditions for capital punishment to operate as a deterrent. I would submit that for any punishment to be capable of deterring ‘would-be' wrongdoers there must be certainty that it will be applied once the person has been apprehended. This is not just my own personal view but a view that one finds stated by criminologists in their analyses of the ‘deterrence' argument. If we look at the position in Ireland today in this regard we find that the death penalty is not applied in practice. It has fallen into disuse. Public opinion is against it and recently the former Government and the present Government refused to implement it. Now it seems abundantly clear to me that only one conclusion can possibly be drawn from what I have said and that is that, whatever deterrent effect capital punishment may have had up to recently, that deterrent effect has now been completely undermined by the virtual certainty that it will not be applied in practice. If the potential murderers know that they will not be executed how can the death penalty act as a deterrent? Is it not, as Senator Whitaker said, an ‘empty threat'. And how can an ‘empty threat' be a deterrent?
As to the point made that the level of violence in our society today warrants retention of capital punishment, I am quite prepared to acknowledge that there is a worrying trend in the figures for violent crimes. It appears also to be the case that more attacks are being directed against the Garda. In so far as these offences — deplorable though they are — are ones which would not attract the death penalty, as most of them are, the retention or abolition of the death penalty is, I would submit, irrelevant. And if it is the case, as the figures seem to show, that the number of ‘capital' offences is on the increase, this seems to me to support the view that the death penalty as a deterrent has failed.
Moreover, while none of us is happy with the present state of affairs in our society in relation to crimes of violence, particularly those directed at the institutions of State, I would venture to suggest that our problems — bad though they are — are not as bad as those that have to be contended with at present in some other Western European countries. The Northern Ireland community has over the past 12 years or so suffered appallingly from the activities of the IRA and other paramilitary groups, yet they have never seen fit to restore capital punishment. In Italy hardly a week passes that some terrible assassination, attempted assassination or bomb outrage does not occur. Yet from what I know the Governments of those countries remain resolutely opposed to capital punishment.
For my part, as I said in my introductory speech, it is essentially a question of principle. I am against the infliction of death by the State as a form of punishment. I am not convinced by the deterrent argument and consequently no amount of violent crime would make me change my mind.
I would like now to deal with some other points that were made during the debate. It was said that abolition of the death penalty will weaken the protection the law gives to gardaí and prison officers and thereby increase the risk they will have to take in the course of their duty. The Government are fully aware of and understand the feelings of the gardaí and prison officers on this issue. The Opposition have been speaking as if they had a monopoly of concern for the members of the force and the prison service. That is not the case. The Government are fully conscious of their obligation to provide the maximum protection possible to those who have to defend the institutions of State. We believe that the provisions of this Bill will give them that protection.
We believe this, firstly, because, as I have already said, the death penalty is not being applied in practice and therefore it cannot have the deterrent effect claimed for it. Secondly, this Bill substitutes for the death penalty a severe sentence of imprisonment which will apply with certainty in every case and which will be immune from the operation of the existing powers of commutation or remission vested in the Minister for Justice. Our view that the abolition of the death penalty will not lessen the protection of police or prison officers is supported by studies conducted in other countries. Indeed, I believe myself — and there is support for this view in studies that have been made — that a far more important consideration in relation to deterring criminals is the likelihood that they will be apprehended and convicted and, of course, if convicted that they will be severely dealt with. This is especially true of those who act in a calculated and premeditated way. In deciding whether or not to embark on their criminal activities I believe that uppermost in the minds of such people is the risk that they perceive themselves to be taking of being caught and their own assessment of how they think they will fare on that particular aspect.
Fortunately, as far as detection is concerned, the Garda have a very good record against serious criminals, particularly against those who have murdered members of the Garda force. The people responsible for the deaths of four of the five gardaí killed since 1975 are now in prison serving either life sentences or 40 year terms. Maintaining this record and improving it where possible will be the best possible answer the Garda can give to the criminal. I am sure that they will agree with me on this. It will be my responsibility to ensure that every modern aid and facility will be afforded to them in the future to continue this work.
It has also been said that abolition of the death penalty will lead to a demand for the arming of the Garda. I do not agree that this is likely to be the case at all. Most members of the force are themselves opposed to the carrying of arms and I do not accept that the carrying of arms would afford any additional protection to the ordinary guard on the beat.
The Garda themselves will be aware of the fact that experience in other countries where the police are armed indicates that not only do armed policemen run a greater risk of being killed by criminals but suspects and innocent civilians also run a greater risk of being killed by the police. I might also mention in this regard that in the recent murders of gardaí in this country the gardaí concerned were carrying arms but this did not deter their killers. A number of Senators have expressed misgivings about the mandatory penalty of 40 years' imprisonment proposed in the Bill in substitution for the death penalty on the grounds that prolonged imprisonment is psychologically destructive and can result in the prisoner concerned becoming more dangerous with the passage of time. Senator Brendan Ryan in particular expressed his concern at this provision.
The Government considered this matter very carefully before coming to a decision on the appropriate penalty to be imposed in substitution for the death penalty. They recognised the merit in the argument that long-term imprisonment can have a debilitating effect but they considered that the overriding need to mark the gravity of the offences in question, to demonstrate the community's abhorrence of these crimes and to afford the maximum possible protection to gardaí and prison officers required a sentence of exceptional severity. I should mention again, perhaps, that under prison rules applicable to prisoners generally, the minimum period of 40 years may be reduced by one-quarter for good conduct. The resulting net minimum period of 30 years, while still an extremely severe sentence, is not out of line with sentencing practice in some other countries. For example, a number of prisoners in Britain have had minimum terms of 30 years, and even 35 years, recommended by the trial judge. Sentences of longer duration are not unusual in the United States.
Senator Whitaker was inclined to doubt the wisdom of the provisions in section 5 which will prevent the Government, and the Minister, from exercising their statutory powers to commute or remit sentences imposed in this category of case. In normal circumstances I would agree with him that such rigid provisions tying the hands of the Minister and Government are to be avoided. However, in this case I feel very strongly that it was essential that it should clearly be seen in advance that every possible step was being taken to ensure that persons convicted of these offences would serve the sentences in full and that there would be no possibility of early release on parole. If that were not done there would be a clear danger that the potential murderers and assassins would feel that, with the passage of time, there would be a softening of attitudes towards them and that they would be released after serving sentences roughly equivalent to what the ordinary prisoner doing "life" serves at present.
Senator Whitaker also wondered whether there was a need to have some political overseeing of the rules relating to the granting of remission for industry and good conduct. In answer to that I would point out that the rules are in fact made by the Minister under the powers conferred on him by the Prisons Acts and that, in practice, the operation of the rules is supervised directly by the Governor and his staff and, indirectly, by the Minister. Remission is automatically given to every prisoner who obeys prison discipline, but it can, and frequently is, taken away for offences against good order and discipline.
Senator Honan queried the use of the expression "symbolic" in relation to the abolition of the death penalty. In view of the fact that the death penalty is for all intents and purposes gone — and, in this regard, I would remind her that this is also the view expressed by the leader of her own party — its removal from the Statute Book does not in practical terms alter the existing state of affairs. It is a formal symbolic act in that sense, and, moreover, to retain it would also be a symbolic act because it is not applied.
It has been suggested that the imposition of an appropriate penalty for the offences listed in section 3 should be left to the trial judge. The Government considered this approach but, as I have said, we were of the view that, for crimes of this nature, it was necessary to make it absolutely clear beforehand to those who might be contemplating attacks on the institutions of State that a heavy price would have to be paid on conviction.
Senator Murphy asked if the death penalty was being removed for all offences in the purely military sphere — even in times of war — and Senator Honan had, I think, a similar question. The answer is "yes", but I would point out to Senators that under existing law the death penalty is not mandatory for such purely military offences.
Senator Murphy also asked if the appellate court would have power to acquit and whether it could interfere with the mandatory minimum sentence. The answer is that we are not touching the existing appellate machinery in any way. The appellate court can acquit — this is the general law — and, as section 6 (2) provides, the appellate court can substitute "ordinary" murder or manslaughter. If it upholds the conviction for "section 3" murder, the minimum mandatory term of 40 years will apply.
If I have overlooked any points I apologise. Senators will no doubt raise them again on Committee Stage. I have tried to deal with the main points raised in the debate, especially the policy issues underlying the Bill. My own concluding remark is this: The law at present empowers the State to take human life — to kill — as a form of punishment for criminal acts. This barbaric and archaic form of punishment is no longer acceptable in this country and there would be a public outcry if its use were ever proposed in the future. I was interested to hear Senator Tom Hussey say that 99 per cent of the people here want the death penalty to be retained. I do not know where he got that sort of information but I will concede that public opinion is divided on the issue. I would also say to the House that if and when we decided to apply the death sentence under existing legislation as the day of execution approached there would be a clamour of public opinion, almost a unanimous clamour, to stop it and any Government that would implement it would be seen, and rightly so, as a reactionary and barbaric Government. That there would be a public outcry, in my view, is an indication of the progress we have made as a nation. It is an indication of the social maturity of our people that they should abhor violence to such an extent.
If we are not going to use the death penalty then it is much better that we should abolish it. For one thing, we now have the unreal situation where the courts go through the solemn ritual of pronouncing the death sentence, a sentence which everybody knows will not be implemented. This brings the law, the courts and the Oireachtas into disrepute. It is far better to remove this anachronism and to substitute a sentence to which full effect will be given and which will be clearly seen as evidence of the determination of the Oireachtas to punish severely those criminals who attack the institutions of the State. Senators, the death penalty is going and we should not bid it stay.