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Seanad Éireann debate -
Thursday, 21 Jun 1990

Vol. 125 No. 11

Criminal Justice (No. 2) Bill, 1990: Second Stage.

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

The purpose of this Bill is to abolish the death penalty for those offences for which it remains a punishment. The death penalty was partially abolished by the Criminal Justice Act, 1964. It was since retained only for a very limited number of serious offences. These are treason, capital murder and certain offences by persons subject to military law under the Defence Acts such as mutiny with violence.

Capital murder is defined in the 1964 Act as meaning the murder of a member of the Garda Síochána or the Prison Service acting in the course of his duty. It includes also murder done in the course of furtherance of certain offences under the Offences against the State Act, 1939, or in the course or furtherance of the activities of an unlawful organisation, or the murder of a member of Government or diplomatic officer of a foreign state.

The last execution carried out in the State was in 1954. In the period since the enactment of the 1964 Act 11 persons have been convicted of capital murder, although in the case of two of them the convictions were quashed on appeal and convictions of "ordinary murder" substituted. In the case of the other nine persons who were sentenced to death for the murder of members of the Garda Síochána the sentence was commuted by the President to imprisonment for 40 years. Effectively, therefore, the death penalty has all but been abolished and what we are engaged on here in this Bill is giving formal recognition to that fact.

While it has remained on our Statute Book as the mandatory penalty for treason and capital murder since 1964 it has never since been carried out. Even those who might still claim that the death penalty has a particular deterrent value — and I am not one of them — would have to accept that there is little point in retaining it as a paper provision which no one really believes will be put into effect.

This question of whether the death penalty has, in fact, a unique deterrent value has been examined and debated in many jurisdictions down the years and, to my knowledge, no substantive evidence has been adduced to support the contention that it does have such a value. In this regard we can look to our own experience. We abolished the death penalty for "ordinary" murder in 1964 and, despite some expressions of foreboding at the time, this did not lead to any discernible increase in the murder rate. On the other hand, despite the retention of the death penalty for capital offences there has, most regrettably, been an appalling increase in the rate of murderous attacks on gardaí, largely related to the growth of subversive crime since the late 1960s.

In the context of subversive crime we must also recognise that the use of the death penalty as an ultimate punishment or deterrent could well have a counterproductive effect. Experience has shown that the Provisional IRA and their ilk place so little value on human life in pursuit of their misbegotten campaign that even the lives of their own members are considered expendable where it can be turned to their advantage. Such people would be more likely to welcome the death penalty for the political capital they could make out of martyrdom than to be deterred by it.

Nonetheless, I believe that the continued existence of the death penalty on our Statute Book has served a purpose. It has served to symbolize our particular abhorrence of capital murder and our resolve to protect our gardaí and prison officers. I had to be concerned, therefore, in considering this Bill to ensure that a move now to abolish the death penalty would not give a wrong signal in this regard; that it could not be construed as a weakening of the Government's resolve to protect our gardaí and prison officers against would-be killers. To ensure that this will not happen I concluded that we must replace the death penalty with a penal section which will equally reflect our abhorrence of the crimes in question and which will continue to reflect the Government's determination to protect our gardaí and our prison officers.

I am pleased to say that in finally abolishing the death penalty Ireland will be joining the growing number of nations which have already done so. Within the European Community of Twelve only one other member state retains the death penalty on its Statute Book and I understand that in that case moves are afoot to abolish it. Both the Council of Europe and the United Nations have adopted instruments calling for the complete abolition of capital punishment and the way will now be open to us to become full participants in those agreements.

I am fully satisfied, as are the Government, that there is no longer a valid argument for retaining the death penalty and that the time is now right to eliminate it from our Statute Book. The favourable public reaction to this Bill and the welcome which it received from all parties in debate in Dáil Éireann confirm me in this view.

I would now like to outline the provisions of the Bill. The key section of the Bill is section 1, which clearly and unequivocally states that no person shall suffer death for any offence. The rest of the Bill is largely concerned with the alternative penalty which will be imposed on a person who commits treason or what is now termed "capital" murder. Section 2 provides that such persons will be sentenced to imprisonment for life. This is the mandatory penalty which was provided for non-capital murder in place of the death penalty in the 1964 Act. It was argued during the course of the debate on the Bill in Dáil Éireann that that sentence should be sufficient; that the same penalty should apply irrespective of the status of the victim. To an extent that will be the case under the provisions of the Bill. Section 2 provides that imprisonment for life will be the mandatory penalty for all murders. This has to be the case because, short of the death penalty, there is no more severe penalty available.

However, I do not agree that a life sentence simpliciter is adequate in the context of the crimes addressed in this Bill. The fact is that sentences of life imprisonment rarely result in anything like a life term being served. In a great many cases a person on whom a life sentence is imposed is not required to serve more than ten to 12 years' imprisonment. Indeed, with the recent establishment by me of the Sentence Review Group under the chairmanship of Dr. T.K. Whitaker, formal provision is made for the review of all long-term sentences, except those imposed for capital offences, after seven years has been served.

There are very good reasons why the offences which are set out in section 3 of the Bill should be treated differently from ordinary murder or attempt. Those offences not only relate to murderous attack on an individual, terrible as that is, but also represent an attack on the institutions of the State. A garda, for example, faces risk to his life not because a criminal has some personal animosity towards him but because he represents the forces of law and order which we, as a society, have established to prevent crime and apprehend criminals. A garda or prison officer must deal with very dangerous and unscrupulous people as part of his job. In performing his duties he must face risk to his life. We know that this is so because so many of our gardaí have, over the years, faced such risks and paid with their lives.

Our gardaí and our prison officers deserve the utmost protection we can give them. As we have a largely unarmed police force and an unarmed Prison Service we must rely heavily on deterrence to protect them. We must therefore make it abundantly clear to any would-be killer that he will pay very dearly if he murders a garda or prison officer. This was the purpose for which the death penalty was retained in the 1964 Act. We must, now that we are finally abolishing it, be equally determined in applying the alternative penal measures available to us to the same end.

This is precisely what the Bill sets out to do. Section 4 provides that a person who is convicted of the murder of a garda or prison officer acting in the course of his duty or who is convicted of treason or one of the other crimes referred to in section 3 shall be sentenced to life imprisonment with the added stipulation that he or she must serve a minimum term specified by the court which must be not less than 40 years.

This is a very severe penalty and I have proposed it only after very careful consideration. As I explained in the other House, in deciding on it I was guided by a number of concerns. One, by the fact that the offences in question represent, as I said, an attack on the institutions and fabric of the State. Two, that we have a largely unarmed Garda force whose only protection from those with murderous intent is the statutory protection we can afford them by way of a penalty with deterrent effect. Three, the security situation which exists in this country where there are armed subversive groups operating which represent a particular threat to our democratic institutions. Four, very heavy maximum penalties are already prescribed for the types of crimes which might give rise to the circumstances where a garda's life is put in danger. For example, the maximum penalty for armed robbery is life imprisonment. An ordinary sentence of life imprisonment for the murder of a garda is very unlikely, therefore, to have any deterrent effect on an armed robber who is trying to evade capture. Five, by the fact that for many years past the effective penalty for capital offences has been 40 years' imprisonment.

The fact of the matter is that for many years past under various Governments the President has been advised, where the death penalty has been imposed, to commute the sentence to 40 years' imprisonment. I see no justification for changing this now simply because the death penalty is being formally abolished. It would not be safe, in my view and in the Government's view, to make any such change at this stage, given in particular the security situation to which I earlier referred.

Again, it was argued that there should be some flexibility in the penalty to be prescribed — perhaps a range of penalty between 20 and 40 years — leaving the court with discretion as to the precise period which should be imposed depending on the facts of each case. On the face of it this is an attractive idea and was, indeed, one of the options I considered when the Bill was being drafted. The problem with it, however, is that it lacks certainty; and, in a situation where I believe the deterrent effect of the penalty is of the utmost importance, certainty is essential. I do not want a situation where some villain with his finger on the trigger can entertain any false illusions about an easy sentence.

Section 3 also provides for a new offence of attempted murder of a garda, prison officer, etc., with a mandatory minimum sentence of 20 years' imprisonment for the commission of such an offence. This provision is in accordance with the thinking of the Garda Representative Association on this matter — it is a measure designed to enhance the statutory protection afforded to the persons concerned against murderous attack. The Government are satisfied that this provision should be included in the Bill. An attempt to murder a garda or prison officer is morally every bit as culpable as murder itself. The aim of the perpetrator is murder. It may be purely fortuitous that he does not succeed.

Following on from sections 3 and 4, section 5 copperfastens the mandatory nature of the sentences by providing that the Government's and Minister's power to commute or remit sentences under section 23 of the Criminal Justice Act, 1951, will not apply to such sentences. Also it limits the Minister's power to grant temporary release under the Criminal Justice Act, 1960, to release for grave reasons of a humanitarian nature and then only for such limited period as is justified by those reasons. This provision is necessary to make it abundantly clear that the penalties set out in section 4 will not be watered down. As I said, I do not want any subversive or other criminal to be under any illusion if they decide to murder a garda or prison officer or commit one of the other offences set out in section 3 of the Bill as to what their punishment will be.

Some criticism has been voiced about this provision. It has been argued that the imposition of a long sentence without hope of review is inhumane and that it will be detrimental to the prospects of rehabilitation. I accept, as I said earlier, that a 40 year prison term is a very harsh penalty. I would much prefer if I could recommend something less, but I am satisfied for the reasons which I have given that it would be wrong for me to do so.

I also fully appreciate that a long immutable prison sentence is not ideal from the point of view of rehabilitation of a prisoner. However, as I have been at pains to point out in this speech, my primary concern in proposing this penalty is deterrence. I want to prevent the murder of gardaí or prison officers. I am satisfied that I will not do this if I introduce a regime which could lead potential murderers to the belief that the murder of a garda in an attempt to evade justice will not greatly increase the time they might spend in prison in any event for some contemporaneous offence such as armed robbery. I am, I believe, as liberal and humane as the next man but I will not seek to establish my credentials in that regard at the expense of additional risks to gardaí or prison officers.

The Bill, however, will enable 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 deductable from the period specified by the court. This remission should not be confused with the Government's and Minister's power to remit punishment which, as I have already explained, is being restricted. At the moment, remission for good conduct amounts to one-quarter of the sentence so that a person in respect of whom the court had recommended 40 years would be eligible to earn ten years remission bringing the minimum period that he would have to serve down to 30 years.

The remaining provisions of the Bill largely relate to technical or procedural matters which I think might be left to discussion on Committee Stage. 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) of the Bill that murder to which section 3 of the Bill refers — formerly known as "capital" murder — or attempt at such murder will be distinct offences from "ordinary" murder and attempt and that it will be necessary, in order to convict a person of such offences to prove mens rea— that is, necessary guilty mind — in respect of all the ingredients of the offence. What this provision means is that a person charged with, for example, the murder of a member of the Garda Síochána acting in the course of his duty will not be convicted of the offence unless it is proved that he knew that the victim was a member of the Garda Síochána acting in the course of his duty or he was reckless as to whether the victim was or was not such a member. In this respect we are following the judgment of the Supreme Court in the Murray case in 1976. 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 murder to which section 3 of the Bill applies. This will preserve, for example, 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.

Senators will see that quite a substantial number of consequential amendments are proposed to the Defence Acts. Those Acts, which contain the code of military law, have quite a number of provisions dealing with the trial of offences against military law by courts martial and it is necessary to amend some of these to bring those Acts into line with the provisions of this Bill. Most important to note is that for purely military offences for which the death penalty is the maximum sentence at present an ordinary life sentence is being substituted.

As I said in the other House, I for my part, am proud to be the Minister for Justice who will finally remove the death penalty from the Irish Statute Book. I have been a fervent abolitionist and I am glad to see it go. I know many Members of this House will share my views in this regard and join with me in welcoming this historic legislation.

I commend the Bill to the House.

I welcome the Minister to the House. I welcome the Bill and support the legislation to abolish the death penalty from a humanitarian point of view. I welcome it also on the basis that it is a reformist measure and brings Ireland into line with many international treaties which we have signed as a nation and about which we have been a bit hypocritical in not removing the death penalty.

I would like to quote Amnesty International's views on the present situation with regard to the death penalty:

The time has come to abolish the death penalty worldwide. The case for abolition becomes more compelling with each passing year. Everywhere experience shows that executions brutalise those involved in the process. Nowhere has it been shown that the death penalty has any special power to reduce crime or political violence. In country after country it is used disproportionately against the poor or against racial and ethnic minorities. It is often used as a tool of political repression. It is imposed and inflicted arbitrarily. It is irrevocable punishment, resulting inevitably in the execution of people innocent of any crime. It is a violation of fundamental human rights.

I believe that the death penalty is barbaric and I have abhorred the act of capital punishment ever since childhood. I read, as a very young person, the experiences of many people on death row, especially in the United States; and I think we all had this experience and were moved by reading of the last days of our 1916 leaders before their execution. In that context I welcome the removal of capital punishment.

When the death penalty is carried out it is carried out in the name of the Irish people, of each one of us individually, and on this Amnesty International state:

The death penalty carried out in the name of a nation's entire population involves everyone. Everyone should be aware of what the death penalty is, how it is used, how it affects them, how it violates fundamental rights. The death penalty is the premeditated and cold blooded killing of a human being by the State. The State can exercise no greater power over a person than that of deliberately depriving him or her of life. At the heart of the case for abolition, therefore, is the question of whether it has the right to do so.

The carrying out of the death penalty is, as Amnesty International stated, a breach of human rights. It is state brutality. I think this was highlighted in a very horrendous way by the Nazi atrocities during the last World War when the state exercised its power in this respect. They took it to very extreme circumstances. In regard to the brutal aspect of it, I will again quote from Amnesty International because their views are accepted internationally:

The staggering extent of State brutality and terror during World War II and the consequence for people throughout the world were still unfolding in December 1948 when the UN General Assembly adopted without dissent the Universal Declaration of Human Rights. No matter what reason a Government gives for executing prisoners and what method of execution is used, the death penalty cannot be separated from the issue of human rights.

I would also like to especially welcome the mandatory sentence of 40 years for the murder of a garda, prison officer or Member of the Oireachtas. In fact, last March I asked that this would be the approach. I asked for mandatory sentences of 40 years for murder and 25 years for the attempted murder and I am glad the Minister has taken this on board.

The Garda are obliged by their oath of office to challenge some of the most fanatical, brutal and vicious terrorists and criminals in the world. They do so in an atmosphere charged with emotion. They are an unarmed police force. They are without defence. Gardaí doing their job, are protecting persons and property from violence and criminality. They are always in the forefront, and usually alone, when the most violently disposed members of society have to be confronted. Such people have no respect for the value of human life. It is important — and I welcome it — that there should be a substantial deterrent to the would-be killers of the last unarmed police force in Europe.

I welcome the approach the Minister has taken. The alternative would be to arm the Garda Síochána but the result of this would lead to an increasing use of more lethal fire power in the hands of the criminals and the gardaí alike. The Garda are charged with the responsibility of enforcing law and order in accordance with the express will of our people. The Association of Garda Sergeants and Inspectors are concerned about the Bill and we should take account of this. In fact, they are opposed to the abolition of the death penalty. In the context of the mandatory element of 40 years, the Association of Garda Sergeants and Inspectors, in a circular to Deputies and Senators state:

The suggestion that a 40 year mandatory sentence replace the death penalty is not acceptable because a criminal serving the mandatory sentence is beyond further substantial punishment. In an escape attempt such a person can afford to be absolutely ruthless with the lives of prison officers, gardaí or the general public because society cannot impose any further death penalty. The public quite rightly expect the gardaí to defend and protect them againt the increasing use of firearms by criminals. In return the gardaí are entitled to the maximum protection which society can afford and it is the firm opinion of the Association that the death penalty should be retained on the Statute Book as a factor in that protection.

We must note very carefully what the Garda Sergeants and Inspectors are saying. I do not know what the answer is. Perhaps the Minister has considered this since his discussion in the Dáil and come to some solution of the problem that people who have no further sanctions against them can be ruthless in an escape attempt.

The approach should be perhaps that we should monitor and review how the Bill and the areas of the Bill operate in practice. The Bill would be enhanced if the Minister is obligated to report to the Oireachtas on the workings of the Bill in, say four years' time. We must respond to the Garda with regard to their worries on the Bill. If there were a review period it would improve the measure.

The Garda Representative Body likewise are concerned. I quote from the address of the President of the Garda Representative Body to the conference in 1990, in which he asked the Minister for Justice to withdraw the proposal:

We are now asking you, Minister, to withdraw the proposal and retain the death penalty for the murder of gardaí in the course of their duty. We would submit that now is not the appropriate time to abolish the death penalty. We challenge you to ask the people and hold a referendum on this issue and let the people decide. If we are to remain an unarmed police force, something that is unique in the world today, something that is cherished by every rightthinking member of society, we must have the ultimate protection and insist on the retention of the death penalty.

Again, at the conference the delegates voted for the retention of capital punishment because of their concern for their situation. We must take note of this. At the conference it was also stated:

If the death penalty was abolished every garda in the country could be carrying a gun within the next five to ten years if the Government goes ahead with its plan to abolish the death penalty. The opening session of the annual conference in Killarney heard the claims that the removal of the death penalty would eventually mean that armed criminals would have very little deterrent against opening fire on gardaí.

This is a quote from the conference in 1990. In fact, the incoming President of the Garda Representative Association made that statement.

The Secretary of the Association of Garda Sergeants and Inspectors, George Mayberry, has voiced his concern and that of his organisation at the removal of the death penalty. I quote:

The Association feels that the present time could not be more inappropriate for the removal of the death penalty in view of the fact that this country contains a large number of subversives who have access to firearms and explosives. The unarmed Gardaí in their efforts to maintain law and order are continually liable to end up in confrontation with these elements, with consequent extreme danger to their lives. In addition, the possibility remains that members of the force will once again become a primary target for these subversives. The Gardaí require the additional deterrent of the death penalty as a protection in carrying out this hazardous work. The recent incidents in Athy and Enniscorthy are examples of the dangers in which members of the force are becoming increasingly involved.

Minister, I ask you not to ignore the views of the Garda. It would be unfair to totally disregard them. I believe my proposal that after a period a review should be taken of the Bill by obliging the Minister for Justice to report back to the Oireachtas on the effects of the restrictions on his powers imposed by section 5 would facilitate debate on the issue after a period of time. If it is then seen that further legislation is required, the effect will be to stimulate the introduction of such corrective legislation. I feel this is the least the Minister can do to alleviate the concerns and fears of the Garda Sergeants and Inspectors and the Garda Representative Association. The Oireachtas after four years could look at their concerns. The Garda would be aware of this and the genuine concerns would be seen to be given a fair response by the Minister and by the Government.

Just to give another view on the abolition of the death penalty, the Irish Commission of Justice and Peace, a Commission of the Irish Bishops Conference, welcome the announcement of the legislation. Since 1976 the commission have urged this, and I quote:

A considered decision now by the Government to abolish the death penalty would mean not the loss of a questionable deterrent but rather the affirmation of the fundamental value of human life and, incidentally, the clearest possible demonstration that our community says "No" to those who claim the right to take a life of others wherever and whenever they wish.

The commission intend to examine any proposed alternatives and will issue further statements. We look forward to their reaction to the discussions on the Bill.

While the contents of this Bill are very welcome, I am disappointed the Minister has not extended the scope of the Bill to tackle the whole area of sentencing by our courts. A more comprehensive approach should be taken to the whole area of sanctions by our courts. We should have alternatives to prison for minor offences such as the non-payment of fines and debts. It is absurd that our prisons are clogged up with offenders at the cost to the taxpayer of over £600 a week. It is disappointing the Minister did not use this Bill as part of an overall reform of this aspect.

As a compliment to the decision for a mandatory sentence of 40 years for the capital murder of a garda or prison officer, I believe prisons should be reserved for those who commit serious crimes against persons and property. These people should serve their full sentence with time off for good behaviour. Last year alone 1,000 prisoners were committed for non-payment of fines and 250 for non-payment of debts. Alternatives should be looked at for sanctioning people who do not pay fines or do not pay debts. Perhaps there should be an approach to increase the level of fines for certain offences rather than custodial sentences or alternative approaches in the event of default of paying, non-payment of fines or non-payment of debt. There should be a more effective non-custodial sanction in the event of such non-payment. A range of alternatives to prison should be considered. An example of this might be the confiscation of property and the extension of the approach of compensation to victims of crimes. This is particularly true in the case of old people whom I have often said are very traumatised by, and often never recover from, the effects of break ins and robberies which take place especially in the countryside.

When there is default in the payment of such compensation or when there is non-payment of fines, the approach to be taken might be the attachment of income where possible. Where this is not possible an extension of the present approach, the community service activities, should be substituted rather than putting such people in prison. Many people will not have the ready cash to pay the fine and putting them in prison is not the alternative. An extension of the community service approach should be taken. It is a pity the Minister did not take the opportunity to do this under a broader extension of this Bill.

I would like to express the growing concern about the increasing crime rate, especially outside Dublin. In some areas the growth in crime has been quite horrific. Those who commit such crimes know that they will not serve their full sentence. Full-term prison sentences must be served especially by those who claim political motivation. Those who are a serious threat to society and to the State must serve their full sentences. Those who commit, and are convicted of, homicide and grave crimes against the person, organised crime, drug pushers, armed robbers, taking property with serious violence and those who attack the elderly, should serve their full sentences.

Capital punishment has not been carried out in this country since 1954. We do not have the facility to carry out such an act. A law that cannot be enforced is a bad law. It is right to repeal capital punishment at this time. We are actually giving statutory effect to what is in existence. Killing is never justified. The last remaining group who now have capital punishment as their basic tool to achieve their aims are the terrorists who carry out capital punishment even without trial. I would like to again use this opportunity to condemn the cowardly acts of such people, and I was glad to hear the Minister again today condemn them. We cannot do that often enough. We should ask them to look again at their situation in the context of what the State is doing in the area of capital punishment and at their approach to capital punishment without trial. Capital punishment is never acceptable, with or without trial. If capital punishment was carried out on people who commit such crimes as terrorist, it would be used by them to highlight their cause. This is another reason for removing it. The godfathers would use misguided people as martyrs and parade them as heroes to recruit people to carry out their evil activities.

Another reason to abolish capital punishment is the possibility of error which cannot be ignored. All human institutions are fallible. Society must have the opportunity to make good its mistakes. We have seen that with the Guildford Four, the Birmingham Six, and so on in Britain. Society must have the opportunity to correct its mistakes. You cannot correct a mistake having carried out capital punishment. I ask the Minister to look at the genuine concerns of the Garda and to look seriously at a review of the operations of the Act.

I welcome the fact that the Government have decided to finally abolish capital punishment. I compliment the Minister for Justice on bringing this Bill before the Oireachtas. Even though the 1964 Criminal Justice Act abolished the death penalty for all but a small number of very serious offences, and even though it is 40 years since the last execution was carried out in the State, we were one of a small minority of countries in Western Europe and, indeed, one of only two countries in the European Community, which continued to retain capital punishment on the Statute Book.

Over the years various groups and organisations have campaigned for the abolition of the death penalty. All Members of the Oireachtas have, I am sure, received regular publications and circulars on this matter from organisations such as Amnesty International, the Irish Council for Civil Liberties and the Irish Commission for Justice and Peace. In addition, the abolition of capital punishment had the support, in one form or another, of the main international bodies of which Ireland is a member, namely the Council of Europe, the European Parliament and the United Nations Organisation.

Until quite recently a consensus did not exist in this country that capital punishment should be abolished. I am satisfied that the view was widely held that the death penalty was the most effective deterrent society could provide and that, therefore, its retention on the Statute Book was the greatest possible protection that could be given to our Garda and prison officers. The fact that we have in the main an unarmed police force and an unarmed Prison Service strengthened public support for this view. In more recent times the effectiveness of the death penalty as a deterrent was called more and more into question. First, there was the growing perception that because nobody had been executed for such a long time it was becoming increasingly unlikely that there would ever be another execution. Secondly, the experience in those countries in which the death penalty had been abolished appeared to be that there was no appreciable increase in the level of crimes for which capital punishment was the penalty. Indeed, as the Minister for Justice stated, our experience since the passing of the 1964 Criminal Justice Act is that there has been no discernible increase in the number of murders committed.

Another realisation, which has influenced many Irish people's attitude to the death penalty is the fact that if there had been capital punishment in England when the Guildford Four and the Birmingham Six were convicted, there would be no possibility of rectifying the miscarriage of justice of which they were victims. Other factors, too, have caused many people to reflect on the sacredness and dignity of human life in a way in which they may not have done heretofore.

In recent years terrorist groups, subversives and a growing number of criminals have shown a callous disregard and, indeed, utter contempt for the right to life. The vast majority of Irish people have viewed the terrible atrocities committed in the name of Irish reunification with absolute revulsion and outrage. Side by side with these developments there has been an increasing awareness of the violation of human rights in other countries. This awareness has helped to underline the fact that the most fundamental human right of all is the right to life.

All these factors combine to bring home to people that there is a considerable element of inconsistency in condemning violence and the violation of human rights and the same time retaining capital punishment in our legislation. I believe the Minister and the Government are in tune with public opinion in now bringing forward proposals for the final abolition of the death penalty in Ireland. I know that at this year's Garda Representative Association Conference considerable opposition was expressed to the removal of the death penalty on the basis that its removal will expose gardaí to greater risk and perhaps death. I cannot accept that this will be the case.

I am not convinced that having capital punishment on the Statute Book has had any real effect over the past number of years or that its retention would be any more effective as a deterrent than the mandatory sentences provided in this Bill. Incidentally, when I was studying the reports of the Garda Representative Association Conference in the May issue of the Garda Review I was amazed to read that murder is not a scheduled offence under section 30 of the Offences Against the State Act and that consequently gardaí cannot hold and question murder suspects for up to 48 hours, as they can do, for instance, in the case of persons suspected of causing malicious damage to property. This would certainly appear to be an anomaly and one which should be changed. In fact, a murder suspect can only be held for six hours. I believe that any reasonable person would have to accept the case that the six hour questioning limit militates against gardaí in a murder investigation. I believe this is something that the Minister should look at with a view to having murder made a scheduled offence under section 30 of the Offences Against the State Act. I accept, however, that that is a matter for another day.

I agree with the provisions for mandatory minimum sentences which the Bill contains. Section 4 provides for a mandatory minimum sentence of 40 years' imprisonment for the offences for which the death penalty is now being abolished. These include murders of gardaí or prison officers in the course of their duty. It is right and proper that any person who is convicted of such a grave offence must serve a minimum term of 40 years less any remission earned for good conduct. This stipulation, combined with the fact that during the minimum period the Minister for Justice and the Government will be prohibited from using the statutory powers they have to commute or remit the sentence, will, I believe, constitute an effective deterrent and will serve as an indication of how gravely our society views the murder of a garda or prison officer. I also feel that the provision in the Bill for a minimum sentence of 20 years for the attempted murder of a garda or prison officer will constitute an additional protection to what exists at present. I believe the Government are correct in applying to this sentence the same restriction in relation to commutation and remission as applies in the case of the 40 years sentence.

Some people may argue that these sentences are very severe or that the Bill should not provide for mandatory minimum sentences. My view is that any lesser penalties would be seen as a failure to provide adequate deterrents against the murder or attempted murder of gardaí or prison officers. I would also point out that there is a provision for a prisoner serving such a sentence to earn remission for industry and good conduct in the normal way. Under the present arrangements this remission would enable the sentence to be reduced by a quarter, or ten years in the case of a 40 year sentence. There is also a provision in the Bill that the Minister may "for grave reasons of a humanitarian nature" grant temporary release to a prisoner serving a mandatory sentence under this legislation. This temporary release would, of course, be only of such duration as would be justified by the grave reasons for granting the release. I welcome both these provisions in the Bill because I feel that their inclusion underlines the fact that retribution was not a consideration in the drafting of this legislation.

I would like to reiterate that I do not believe that the passing of this legislation will in any way dilute the support and protection which the Garda and the Prison Service are entitled to expect and to receive from the people they serve with such dedication. I am sure that all Members of the House are deeply conscious of the fact that over the past 20 years 11 members of the Garda Síochána were brutally murdered. Two of them, John Morley and Henry Byrne, natives of a neighbouring county, were viciously gunned down in my own county, County Roscommon. Two others, Gardaí Dick Fallon and Frank Hand, natives of County Roscommon, who were stationed elsewhere, met a similar fate in the course of carrying out their duties. I mention these four simply because of their connection with my county but I believe it is appropriate that we should salute here today the courage and bravery of all members of the Force who paid with their lives in the course of their duty. We are very fortunate to have a loyal and dedicated police force and Prison Service, a fact which is recognised by all right thinking people and which it is proper to acknowledge here today.

This, however, is not an issue in this debate. The sanctity of human life is at issue and what the attitude of the State as expressed in its legislation should be to what I have already referred to as the most fundamental human right of all, the right to life. To me the answer is simple. The death penalty has not been carried out in this country since 1954. In practice, therefore, it has been long since abolished. The time has come to remove it from the Statute Book. I compliment the Minister for Justice again on bringing forward this Bill.

First, I would like to congratulate the Minister on the Bill; secondly, I regret his absence from the House. While I wish to cast no aspersions on the Junior Minister who is present — undoubtedly a very good junior Minister in his Department — it is a pity that, once again, when the Seanad has an important Bill in front of it, we do not have the appropriate Minister taking the Bill. This is happening too often.

The Minister for Justice has not got a Junior Minister but it is rather insulting to this House that a major piece of legislation of this sort should be going through without the appropriate Minister or Junior Minister taking it. If the Minister for Justice has too much to do, maybe the Government could appoint somebody to substitute for him or somebody who could take a Bill like this through the Seanad at the right time.

I would like, in his absence, to congratulate the Minister for introducing this long overdue Bill. I hope he will not take it the wrong way if I say that it is with some surprise that some of us have greeted his liberal outlook on the system of justice in this country. He has been enlightened in many ways. He was happy to amend the Incitement to Hatred Bill; his predecessor was not. He is willing to review sentences. He is introducing a Bill to review sentences where there is a possibility of mistake. This is the third reformist and enlightened measure which we should welcome in this House.

The abolition of capital punishment in the Criminal Justice (No. 2) Bill is, as many in this House will recognise, long overdue and the measures to ensure the abolition of hanging have had an unhappy history in this House in particular. In 1981 a Bill so similar to this that it is very difficult to see the difference in any material facts in the Bill was introduced by the Minister for Justice at the time, Deputy Mitchell, and it was opposed by Fianna Fáil. It was put through by the Coalition Government but lapsed simply because the Government fell.

In 1982 in company with several other Independents, I put down an almost identical Bill on the Order Paper of this House hoping, thereby, to have the support of the Government of the time, a Coalition Government of Fine Gael and Labour, and to their shame in this House the Opposition parties who had introduced the Bill at the time talked that out and refused to take a position on capital punishment once they moved into Government. They were obviously subject to the pressures which this Government have felt as a result, which are mainly the forces of law and order in this country, who are opposed as a group to the abolition of capital punishment.

It might be fair to ask why this Bill has been introduced now when Fianna Fáil have for so long said it was the wrong time. While I do not for one moment wish to accuse anybody in the Government of being disingenuous on this, perhaps it has something to do with the fact that it is in the Programme for Government and maybe it has something to do with the Progressive Democrats. I do not think the Fianna Fáil Party would introduce this Bill unless they had been forced to by the Progressive Democrats because it is part of the Programme for Government. Let us not see them taking too much credit for liberal reform when they have opposed this measure all the way for the past ten years. I say, for the first time in my life, thank God for the Progressive Democrats, because this is a genuine, liberal, reforming measure and they are making the Government do something which they do not instinctively want to do.

The abolition of hanging is not just necessary, as many speakers have already said because it is a bad law and because it is not being operated. Many are saying that simply because nobody is being hanged and nobody has been hanged for the past 40 years it is sensible to take this off the Statute Book. That is not the only reason why it should be introduced. I hope though, that that principle will be extended to decriminalise homosexuality because, if they are consistent — I suppose it is too much to expect Fianna Fáil to be consistent — they will, of course, extend this principle to the law on homosexuality where it is still a crime to practise homosexuality. Of course, they would say "nobody is actually prosecuted for it". Let us see them be realistic and show the same principles on that issue as they have in this case by decriminalising homosexuality and taking it off the Statute Book. If they are not going to prosecute people for it, presumably they are quite happy to take it off the Statute Book.

There reluctance on that one is not consistent with their willingness in this case. Perhaps we could call for the help of the Progressive Democrats on that issue as well. They have been very successful on the first. Maybe they could give a little help on the other and the Government can claim the credit for these great liberal reforms which they are introducing.

It is a very historic day in the Seanad for this to happen. Nobody is due more credit than Amnesty International who have been over the years lobbying the Government very unsuccessfully up to now for the abolition of the death penalty. One of the reasons Amnesty played such an important part on this particular issue is because they are an international organisation and they see the countries throughout the world with whom we have kept company on it. Our rigid, obstinate refusal to abolish the death penalty has left us in the company of uncivilised, barbaric nations throughout the world of whose company we should be ashamed. I do not want to mention too many countries in the same breath because I do not want to offend the whole world in one sentence. I think of Iran and Iraq, and also of the easy way they execute people without too much thought in China and in the United States. I think also of South Africa where in very tragic circumstances they have executed people. I think also of the numerous pleas that have been made by this and other Governments not only to the South African Government but to other Governments throughout the world for clemency when people were about to be executed.

When they refused to take hanging off the Statute Book here I always felt we looked extremely stupid protesting at executions overseas when we had, in effect, legal executions in Ireland. For that reason principally so that we can join the international community of civilised nations and not be left with those who commit horrific judicial crimes, it is essential for this country that we take it off the Statute Book. The condemnation of overseas hangings has been an unattractive and hypocritical part of our justice and foreign policy over the years.

It is also absurd for those against abolishing capital punishment — there are more in this House and the other House than will be revealed to this debate — to say that hanging would never be used anyway. That is a very dangerous and foolish argument. It has been a very fashionable argument in this controversy over the past ten years. The attitude that hanging would never be used anyway displays a cavalier approach to the law of the land. It is also unrealistic because it is quite possible a Government could get into power here which did not have as human a face as this Government or the previous Government and decide in the circumstances of an horrific murder that public opinion demanded — and public opinion on this issue is particularly fickle — that someone be executed for a particularly horrific murder. A weak Government might well decide in those circumstances to execute people, to hang people. Because it will not happen in the present circumstances it is unrealistic to expect us never to execute people if it is on the Statute Book. It is quite possible that it could happen in the future. One of the most important principles of this Bill is taking this option forever, hopefully, out of the hands of all future generations. That is absolutely vital. Politicians are very weak in these situations but they will not be put into the position of yielding to public fickle opinion on capital punishment. That is vital. It always seemed to me a matter of great disturbance and unease when people said "do not worry, it will not be used." It could have been used and could be used in the future. We cannot foresee what will happen.

I do not want to go into the longwinded, long debated and very familiar arguments about capital punishment. I would like to say one or two things about the 40 year sentence. Those of us who have championed this measure over the years are conscious of the fact that the Governments who have introduced it have had political difficulties in doing so. Undoubtedly, there has been resistance from the Garda and the prison officers, although I feel it has possibly been exaggerated by successive Governments. The 40-year sentence was obviously introduced to protect them and to mollify their opposition to such. It is very difficult for people who oppose the 40-year sentence not to be seen to be unsympathetic to the forces of law and order and the prison officers. In principle, mandatory sentences are wrong and it is against the principles of natural justice, as I understand them that there should be no review of a sentence of this sort.

Putting different values on human lives is wrong. While one can understand the need to protect prison officers and be sympathetic with the view that they need some sort of special protection, I am not sure that I can see the difference between murdering a policeman in the heat of a bank robbery and the premeditated murder of a child or old person in horrific circumstances. It would be wrong to give any further examples or details but when we start talking about different types of murder and different values on human lives, we get into serious difficulty. It is wrong that for the murder of one person the sentence is 40 years while for killing another person, one gets a sentence of only eight or nine years. The Minister may correct me if I am wrong, but a "life" sentence is only nine or ten years, or maybe 12 years. We are talking about the difference in sentences of ten and 40 years. That is an enormous difference for the horrific murder of a civilian and the murder of a garda. While the difficulties are appreciated, it is wrong to put different values on different human lives. Perhaps, the problem here is that "life" sentences are far too low and I accept the genuineness of a Minister who said that. The judicial policy for "life" sentences is too lenient. The fact is that people sent away for "life" are out in nine or ten years. That is very wrong. That underlines the need for a review of sentences which is not the Minister's responsibility. Ministerial power in this matter is totally wrong. An impartial, independent committee should be set up to review all sentences. There is a huge anomaly between "life" sentences for the murder of a civilian, which is roughly ten years, and mandatory sentences for the murder of a member of the security forces, which is 40 years. I intend, with some of my colleagues on the Opposition benches — not all, obviously; the position of the Fine Gael Party is different — to put down amendments to this section on Committee Stage.

The deterrent argument is a very old one and it would be fruitless to enter into it here. I do not believe that judicial execution is a deterrent. From what I have read about criminology and from all I learned about the history of crime, what stops people from committing crime is not punishment, but detection. It is detection that matters. It is important that we have an effective police force so that criminals realise that if they commit such a crime they will not get away with it. If they believe they will get away with it even if the sentence is 40 years that will not be a deterrent.

I will leave the substantive arguments to my colleagues. However, it should be noted that there are several reasons that Ireland in particular should abolish the death penalty. One is that to retain it in the case of terrorist crimes would be emotional and counterproductive. Very few organisations want the retention of the death penalty but the IRA, the UVF and a few others certainly would like it to be retained. It is in the interest of subversive groups to create martyrs. I have always found it alarming to see on the Statute Book the potential for creating more martyrs in Ireland which, of course, glamorises further those evil organisations.

The danger of a mistake being made is the most powerful argument against the death penalty; it is unanswerable. If one human life is taken in the wrong, then human life should not be taken. I should remind the House that were the death penalty in operation in England, some very well known Irishmen, who are still in jail, would have been hanged for crimes which they may, or may not have committed. Certainly, some of the wrongs in English justice could not have been righted if those people had been executed.

I ask the Minister to consider one particular area in this Bill, that is, the distinction between military and civil law. Perhaps the time has come for us to stop making such a distinction. There is a distinction in this Bill which runs through a lot of legislation.

Finally, I ask the Minister to consider, in the context of this Bill, that a crime is a crime, that morality is morality and if an offence is committed by a citizen of this country, then all people should be subject to the same forms of justice.

This is an important and historic Bill and I am pleased to have an opportunity to make a contribution. This legislation has been mooted for years; the subject matter of this Bill was first debated in 1963 and again in 1981. The death penalty for capital offences has been a most controversial subject over the years. Those people who sought to justify the death penalty have repeatedly urged that the punishment should fit the crime. The main point of their argument is that it is a great deterrent. There is no evidence whatever to show that it has acted as a deterrent anywhere. It is an accepted fact that any normal person convicted of murder would want to avoid the death penalty.

Since 1954 all those convicted of murder and sentenced to execution had their sentences commuted. In the 1964 Act capital murder is defined as the murder of a member of the Garda Síochána or a prison officer acting in the course of his or her duty. The Garda representative authority have expressed their concern that this provision is being done away with because it may expose their members to greater risk of death. In the May 1990 issue of The Garda News it was stated that the Garda deserve and demand the full unreserved support of the State and call on every Member of the Oireachtas to ensure the safety and well being of the unarmed guardians of the peace. Amnesty International states:

Over the past decade an average of at least one country a year has abolished the death penalty affirming respect for human life and dignity. Yet too many governments still believe that they can solve urgent social or political problems by executing a few or even hundreds of their prisoners. Too many citizens in too many countries are still unaware that the death penalty offers society not further protection but further brutalisation. Abolition is gaining ground, but not fast enough.

The death penalty, carried out in the name of a nation's entire population, involves everyone. Everyone should be aware of what the death penalty is, how it is used, how it affects them, how it violates fundamental rights.

The other point made was that the death penalty is the premeditated and cold-blooded killing of a human being by the State. The State can exercise no greater power over a person than that of deliberately depriving him or her of life. At the heart of the case for abolition, therefore, is the question of whether it has the right to do so. It is accepted that the existence of the death penalty on our Statute Book has served a purpose. It served to highlight our abhorrence of capital murder and our resolve to protect our gardaí and prison officers.

The Minister pointed out that in considering this Bill the move to abolish the death penalty will not give a wrong signal or be taken as a weakening of the Government's resolve to protect our gardaí and prison officers against would-be killers. To ensure that will not happen, the death penalty is being replaced with a penal sanction which clearly signals the Government's determination to protect our gardaí and prison officers.

I am satisfied that the Garda Síochána have the full support of every Member of the Oireachtas and the vast majority of the members of the general public, and rightly so. I would like to place on record my personal appreciation and support for the Garda Síochána and the prison officers. They have shown tremendous courage and dedication in protecting the citizens and institutions of the State over many years.

The Bill will further guarantee that the Garda Síochána and prison officers will be protected. Section 2 provides for "life" imprisonment and section 3 states that the minimum period of sentence for attempted murder will be 20 years and 40 years for treason or murder. I have no doubt that those sections will be the subject of much debate.

Over the past number of years many groups have campaigned for the removal of the death penalty from our Statute Book. In a recent statement the Irish Commission for Justice and Peace stated that a considered decision by the Government to abolish the death penalty would mean not the loss of a questionable deterrent but affirmation of the fundamental value of human life and the clearest possible demonstration that our community says no to those who claim the right to take the life of others, wherever and whenever they wish. Ireland, in abolishing the death penalty, will join a growing number of nations who have already done so. Within the European Community of Twelve only one member retains the death penalty on its Statute Book and I understand that in that country moves are afoot to abolish it. Both the Council of Europe and the United Nations have adopted instruments calling for the complete abolition of capital punishment and the way will now be open for us to become full partners to those agreements.

Our gardaí and prison officers deserve the best protection we can give them. We have an unarmed force and an unarmed prison service and we must take all necessary steps to protect them. The Bill makes it clear to any would-be killer that he will pay dearly if he murders a garda or prison officer. I have no doubt that many people would endorse that statement. At the recent annual conference of the Prison Officers' Association the death penalty was debated by delegates. They were almost equally divided for and against the abolition of the death penalty. It was also discussed at the annual conference of Garda Sergeants and Inspectors and their conclusion was that this was not an appropriate time to abolish the death penalty. Both bodies made a number of submissions and I would ask the Minister to take them into account.

In relation to the point made by Senator Ross that this Bill would never have come before the House but for the input of the PDs, I would like to say that this is a Government Bill, the PDs had an input, and rightly so. For years Fianna Fáil have been committed to the abolition of the death penalty for those offences for which it remains a punishment. I trust that the PDs and press have taken note of the Senator's complimentary remarks about the PDs. No doubt he is a potential recruit to that party and will be a tremendous asset to them.

I welcome the Bill. It is historic legislation and I congratulate the Minister on bringing it forward.

I, too, wish to join with other Senators in welcoming the Bill and express my congratulations to the Minister for Justice, who described himself as a fervent abolitionist all his life, and to the PDs because it was on part of the Programme for Government. I would like to pay tribute to those who have contributed towards this Bill.

We are very often critical of Government legislation. Indeed, I am critical and have reservations about some aspects of this legislation. However, the main provisions and the principle underlying the Bill are to be welcomed and the Government are to be congratulated for grasping what is a considerable nettle in introducing the Bill.

In 1908 the Children Act abolished the death penalty for minors. That was the first reforming legislation in this area. In 1964, the then Minister for Justice, Deputy Haughey, abolished the death penalty for offences other than capital murder and treason. This Bill will abolish the death penalty for all offences. It is an historic moment and I am delighted that the Bill is now before the Seanad. No doubt it will be the law of the land within a short time.

I will quote from the excellent document prepared by Amnesty International in 1989 when they designated 1989 as the year for the abolition of the death penalty worldwide. Albert Camus, a Nobel Prize Winner for Literature, wrote for a newspaper during the Second World War. Arising out of atrocities committed by mankind against mankind in that war, the first moves were made towards the abolition of the death penalty worldwide. This is what Albert Camus had to say:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

Those events led to a wave of revulsion against what had been done in the name of mankind. It was in that context that the United Nations Declaration on Human Rights in 1948 condemned cruel and inhuman treatment and torture and described the death penalty as the ultimate form of violence. Amnesty International was established in 1961 and our own Seán MacBride was president of that organisation for many years. He made the abolition of the death penalty one of his major objectives. Amnesty International sought the abolition of the death penalty at a very early stage. I would like to pay tribute to the memory of Seán MacBride. It would be wonderful if he was alive today to see the realisation of an objective which was part and parcel of his life for many years. I see the general secretary of the Irish section of Amnesty International, Mary Lawlor, in the Public Gallery and I welcome her.

The Irish Commission for Justice and Peace and the Catholic Hierarchy made very strong statements in 1976 opposing the death penalty. At that time a particularly serious capital murder was committed. Likewise, in 1976 the Irish Council for Civil Liberties and the Labour Party adopted a position against the death penalty. In the Irish context the campaign began in earnest in the midseventies. In the European context, a number of resolutions were put forward at various levels. The Conference of European Ministers for Justice in 1978 and again in 1980, at which our Minister for Justice was present, recommended the abolition of the death penalty in all member states. In 1980 the Council of Europe recommended the abolition of the death penalty. In 1980 the European Parliament did likewise for all member states. It was an ironic anomaly that we were participating in Europe in all those fora, going along with the recommendation for abolition but taking no steps ourselves to ensure that some substance was put into what we were saying and agreeing to with our colleagues in Europe.

In 1980-81 a campaign was organised mainly by Amnesty International with the Irish Council of Civil Liberties and the Prisoners' Rights Organisation to persuade all political parties to introduce abolitionist legislation. That was successful in bringing a Bill before this House in 1981. It was about to go before the Dáil when the Government fell in that infamous budget in February, 1982 over VAT on children's shoes. We had to wait until this Government came into existence and adopted this proposal as part of their Programme for Government.

The death penalty has been raised in the Seanad many times since 1982 by the Independents, particularly by Senator Ross. He and other Independents have been the most vocal on the matter. They have kept the issue on the Order Paper. They wanted the Seanad, which initially introduced the legislation, to keep it there until such time as the death penalty was finally abolished.

In regard to the arguments for the death penalty, the Minister has, indeed, put forward some good ones. I will mention a few of them that I find particularly strong. One is that the death penalty is a cruel and inhuman form of punishment. It is the ultimate form of violence against a fellow human being. I always found it strange that the State should advocate the taking of life of one of its citizens to prove to its other citizens that the taking of life by them was wrong. To me, it was the ultimate contradiction that the State should take that stance. They did not see the contradiction in it.

The death penalty is, of course, deeply unchristian. It is contrary to humanist, Christian values that there should be no hope of redemption, that the only decision should be that a human being should be destroyed. The entire Christian ethos is about forgiveness, redemption and reformation. In the context of punishment, it is about rehabilitation. In our own Christian context I do not think we have much choice but to accept the principles inherent in the abolitionist argument.

There is the idea that the death penalty is a deterrent. What deterrent is it? If we can have an effective alternative to that, and if the citizenry are protected by somebody being deprived of their liberty, then why does one have to take that ultimate decision to destroy the life of a human being? The death penalty has been unused here for 36 years and legislation that is unused on the Statute Book comes into disrepute. Nobody pays much attention to it and from that point of view it is high time to abolish it.

It has been, to my mind, discriminatory that we have the death penalty for certain offences and we do not have it for other offences. It is clearly putting a higher premium on the value of the life of one human being over another. That is very relevant. In our neighbouring countries, whether it is in Northern Ireland or in Britain, the death penalty does not exist even though there are far more matters of a subversive nature in political terms and a greater threat to the State. We have recently seen that Irish citizens, the Guildford Four and the Birmingham Six — undoubtedly, innocent people — would almost certainly have been executed if the death penalty had been in existence at the time of their conviction in those countries. Innocent people can die when the death penalty is implemented. We know from the Amenesty International statistics from around the world, of the way the death penalty can be used and, indeed, abused in political terms.

The arguments for abolition of the death penalty are extremely strong. Of course, there are arguments against. Otherwise we would not have had the death penalty on the Statute Book for so long. Those arguments come from people who are covered by the terms of the Bill, people who would regard themselves as being in the front line, the prison officers and the gardaí. I was pleased to see at the Annual Conference of the Prison Officers Association this year that they almost passed a resolution seeking the abolition of the death penalty. They have been moving in that direction for some considerable length of time. The gardaí were not so forthcoming and some of the statements by them at their annual conferences were fairly strong for the retention of the death penalty. For example, the leader of the Garda Representative Association, John Ferry, wrote to the Minister for Justice stating that the abolition of capital punishment would remove an essential deterrent to the would-be killers of members of one of the last unarmed police forces in Europe. The Garda Representative Association represents the ordinary rank and file gardaí. Mr. Paddy O'Brien, the President of the Association of Garda Sergeants and Inspectors, said, in his opening address in April at their annual conference, that they will not contemplate alternative sentences to the death penalty. He said:

We want the death penalty retained as the ultimate protection for our unarmed members who go about their duties protecting the lives and property of the citizens of this State and in doing so risk confrontation with armed criminals and subversives. Society must ask itself if it is more concerned about the rights and comforts of the evil wrongdoers than the rights of the unfortunate victims of crime — those victims can and have included members of the Garda Síochána and the prison officers.

Those positions were put by the representative bodies. The Garda have lost 11 members in the past 20 years, a member every two years. The case was put strongest — and in a most unacceptable manner — in the Garda News of February 1990, where a garda stated:

We have to accept that in every society, there lives a small percentage of human vermin, incurably evil and sadistic, thugs, for whom prison is not a deterrent.

That, to my mind, is unacceptable. It should never have been accepted by the editor and is in breach of the Prohibition of Incitement to Hatred legislation we passed recently. The description of human beings as vermin was wrong.

That was the strongest argument against the abolition and it was put by a garda in those terms. The arguments by the Garda were that they were an unarmed police force and they need the protection. There was the old argument that this was not the right time to abolish it. We heard about the deterrent effect and that if it was to be abolished, there should be a referendum. The coded surveys seemed to indicate their position. Sixty-four per cent, for example, in 1982 in an Irish Independent survey seemed to be in favour of retaining the death penalty for capital murders and a much later survey by Gay Byrne in 1989 indicated that 57 per cent were in favour of it for all murders. There seems to be a strong groundswell.

A statement was made at the Garda Annual Conference that if the death penalty was abolished — and this was only a couple of months ago — there would be gardaí and the public marching outside the houses of every TD in the country. It is very interesting that this is not what has happened. There has been scarcely a whimper of protest about the abolition of the death penalty. We have gone on far too long listening to arguments that were clearly without sufficient substance and statistics that were compiled in questionable circumstances. When it really came down to it, the majority of the people of this country did not share the strong position that was enunciated by certain party representative people in this country.

It is also extremely important that there has been an ongoing campaign organised by Amnesty International. That has created an awareness of the situation which might have been impossible ten years ago and we are now at the point where people discuss the matter and are able to accept the abolition of the death penalty. It is remarkable that there has been no outburst of opposition as had been feared.

In relation to this Bill, I would have serious reservations about the mandatory nature of the punishment for 40 years. This is a flaw in the alternative sanction that is about to be imposed. The recommendations of the Whitaker Committee did not envisage that any offence would carry a sanction other than a sanction of imprisonment and that that would be the ultimate sanction — life imprisonment and I refer the Minister to those recommendations again. Built into that sentence of life imprisonment would be a judicial review process. I know the Minister has set up a review process but he has not set up a judicial review process nor has he set up a statutory review process which is present in many other countries. That was the thinking of the committee set up to look into the whole area of crime and punishment.

I would also like to quote from the Garda Representative Association who represent the ordinary rank and file gardaí:

However, if the Government does go ahead with its plans mandatory sentences will have to be introduced for attacks on gardaí and for attempted murder... The mandatory sentence would, of necessity, have to be substantial. I would suggest that a sentence of 25 years would be appropriate...

That is a quotation from a letter from the association to the Minister for Justice in February 1990, where an upper limit of 25 years was suggested as an appropriate sentence. I would like to ask the Minister to look into that again.

May I also refer briefly to a report in The Irish Times of 21 June 1990 on the 74 offenders who will be released in Northern Ireland? These are offenders who have been convicted of crimes against the security forces, including the police and prison officers. They have been convicted of such capital murder, as covered in this legislation and their sentences are being reviewed. They are being released, not in the context of what is being proposed in this legislation. Surely the situation in relation to crimes against the security forces and the institutions of the State are much more severe in the context of Northern Ireland than in the Republic?

I would also like the Minister to address the question of remission. I know it was the Prison Officers' Association that recommended that this element of remission for good behaviour be introduced. We have a quarter remission for male offenders, and a third remission for female offenders. I would like to get some clarification from the Minister. In Northern Ireland half of the sentence can be remitted by good behaviour.

Also in the context of the Offences Against the State Act, can we get some statement in relation to the fact that we do not have jury courts, and that all of the convictions in relation to capital murder in recent times have been in the non-jury courts since their establishment in 1972?

In relation to the statement by the Minister about the definition of a prison officer and the extension to anybody involved in custodial duties, does that cover, for example, visiting committee members who have got disciplinary responsibility? They can put prisoners in irons, and so on, in the prison context. Are we talking about those being covered by it also? We need a clearer definition of that. This is a tremendous day for Ireland in the context of human rights. We are a small country that has projected ourselves very well abroad as a peacekeeping country. We are now taking that step ourselves to present ourselves as an example to the world in the context of abolition of the death penalty.

On a point of order, I thought I was listed as third speaker on the Government side this morning on the list supplied to the Chair earlier by the Whips.

I am taking the list of speakers as presented to me and trying to rotate between one party and another. I understand that nobody from the Progressive Democrats has spoken yet, so they would be entitled to this slot.

You mean they are not part of the Government?

Acting Chairman

No. They have to be taken as a separate party.

I am sorry if there seems to be some confusion about the rotation of speakers. I allowed Senator Foley to go ahead of me earlier.

The introduction of this Bill in the House today is a source of particular pride and some achievement for the Progressive Democrats Party. I was glad to hear some of the independent Senators, in particular, pay tribute to what they perceive as our role in putting this measure before the House.

Since our formation we have argued for the abolition of the death penalty. It is central to our policy on law reform. Consistent with that aim on the drawing up of our draft constitution we went so far as to recommend a constitutional prohibition on the death penalty. The putting together of the joint Programme for Government less than a year ago presented us with a practical opportunity to advance this policy. In the agreed joint programme we made certain that this Government would, as a priority, introduce the measure that is before this House today.

I would also like to pay tribute to those people who, over the past number of years, have consistently campaigned on this issue. Among others, I would like to acknowledge the role that Amnesty International, in particular, have played in this. For the speed and seriousness with which the matter was approached I want to thank the Minister for Justice, Deputy Burke, and to say how pleased I am that progress has been made so that Ireland can join the large number of civilized nations that are now working steadily to banish the death penalty from their statute books.

The death penalty is the premeditated and cold-blooded killing of a human being by the State. It is an act that violates the most fundamental of all human rights, the right to life. The abolition of the death penalty is an affirmation of human values and of hope above revenge. This Bill marks the belated end to what might be termed a barbarous era in our criminal law.

The question often been asked: why should a State kill people who kill people in order to show that killing people is wrong? Surely a State such as ours which amended its laws to extend the constitutional right to life to the unborn could not credibly claim the right to forfeit the lives of criminals by judicial execution? It has been suggested that the killings of gardaí taken hostage might be prevented by threat of the death penalty. In unusual circumstances like that, there is not much greater likelihood that killers will be shot in order to prevent further killing. Accordingly, the immediate threat of death is no deterrent. How much less a deterrent would be a postponed judicial execution?

In the last analysis, the death penalty means executing somebody in cold blood. It means hanging, the electric chair in some circumstances or shooting. It means paying one human being to kill another. It means vigils inside and outside prisons. It means lessening the humanity of all those who are concerned with the trial and imprisonment. I remember a quote I read by Mr. Pierpoint, the executioner. He said he did not believe that anybody was deterred by the threat of execution.

The European Convention of Human Rights of which Ireland, as a member state of the Council of Europe, is a signatory has in a recent protocol that has been signed by a number of member states provided that the death penalty should be prohibited in convention countries. This development in European human rights law shows that the death penalty will be outlawed throughout western Europe. Once we pass this Bill, we will then be free to ratify the protocol to the convention.

I know — and many people have referred to the fact — that there is strong resistance to the provision of this Bill among a number of people, particularly among the Garda Síochána and prison officers. It is readily understandable and presents us with a situation that we, as legislators, cannot ignore. The Garda, quite rightly, have deep-rooted fears for the safety of their members, particularly as the numbers of armed robberies and violent crimes have increased so dramatically in recent years. As a country we continue to ask an unarmed Garda force to protect our people in the face of ruthless and vicious terrorism. My contention is that the retention of the death penalty on the Statute Book is no deterrent to these vicious criminals and that other deterrents must be sought and found.

Capital punishment has not been used in this country since 1954 and the likelihood of it ever being used in very remote. We have had brutal killings of members of the Garda Síochána in instances to which there were no mitigating circumstances, and yet there was no question of carrying out an execution. Since 1970, 11 members of the Garda Síochána have been murdered. That is an average in excess of one garda every two years, yet the presence of the death penalty on our Statute Book had no deterring effect. In the light of that experience of 20 years, it is only reasonable to conclude that the deterrent effect of this provision especially among ruthless criminals, is negligible.

I have said there is resistance. We have heard them in great detail. We have had many quotes from the Garda representative bodies and so on. I can understand that resistence. I am glad that, to some extent, the misgivings of the Garda Síochána have been taken into consideration. It is very important that we give, and are seen to give, wholehearted support to those who risk their own lives in the course of their duty.

In so far as ruthless murderers can face a deterrent, the approach of the Minister is correct. The sentence of 40 years does, indeed, seem a draconian one. I am not a believer in locking people up and throwing away the key, but in the circumstances that exist where we know that there are unscrupulous, dangerous men prepared to stop at nothing, then perhaps we should accept measures such as these. I would look for some degree of flexibility in the future. We must remember that there is some provision for commuting sentences to some extent.

I am also glad to see that there is a mandatory, minimum sentence for the attempted murder of a garda or a prison officer. The Garda representative association's view has been taken into account in this area. It is very important that this is part of the Bill. Those who set out to murder a garda or a prison officer should not be treated with leniency just because they do not succeed in their attempt.

Overall I welcome this Bill. It underlines the respect for life, the most fundamental of all human rights. I know it will receive the support it deserves. I would like to thank the Minister for bringing the legislation before the House. Once again I would like to say how proud I am, and the Progressive Democrats are, to be associated with this Bill.

Acting Chairman

I would remind the Senators that there are a number who have indicated they would like to speak. I would like to ask the speakers to try and stay within the time allotted to them, which is 20 minutes.

I will try to co-operate with that. I would just like to say at the outset I hope to give some minutes of my time to my colleague, Senator Raftery. I know Senator Lydon and others wish to get in.

I welcome the opportunity to speak on the Bill before the House. There are a few points I wish to make. Obviously, in relation to the abolition of the death penalty a couple of matters should be considered. First, there is the whole question of having a death penalty sentence in operation. Secondly, what has been the situation here about having it on the Statute Book? Thirdly — and perhaps more importantly; it has not been referred to enough this morning — there must be adequate protection for the members of the Garda and the prison officers and those to whom this new legislation will apply.

Obviously, the whole question of the death penalty has been widely discussed. It still exists in various parts of the world. One can argue one way in relation to it being a deterrent. Obviously for certain crimes it may be a punishment that fits the crime. Two points particularly against it are, first, that it is a draconian measure but, more importantly, would be the possibility of innocent people being killed and if execution is being carried out there is no appeals procedure.

Having had the measure on the Statute Book over many years, obviously one can argue that it has or has not been a deterrent and that murders have occurred. Members of the Garda Síochána would say that it was a deterrent. What I would say, and what I have argued before, is that legislation should, as a matter of course, come up for review every ten or 15 years. We have many Acts covering a wide spectrum of the law that at times would need review and should come up for review. It is all too slow. These should be on an ongoing basis, a committee of the House which would have legislation coming before it for review. A lot of it may not need review, but this is an idea I suggested before, and it is a good idea.

We have not many people here in this country on Death Row. What we really should be looking at is why we had the death penalty for certain offences against members of the Garda Síochána and prison officers, and for some other offences. We are going to replace it. It appears we are proposing to abolish something that has not been exactly over used in the past number of years. In fact, the sentence of the death penalty was last passed 36 years ago. We should give adequate protection and back-up to those who protect the people of this country. One can argue whether murders should be put into special categories or different categories.

Senator Ross mentioned earlier — and it may be a valid point — that "ordinary" murders — for want of a better description — should be treated more seriously. Life has become far too cheap. It takes a particularly vicious murder of a child or an old person to make big news. Otherwise, it is relegated to the less important section of the paper. Without wanting to sensationalise things, it is a bit like the murders in Northern Ireland. Unfortunately, it has become part of life; we accept that it is human nature.

Life has become too cheap, particularly in relation to members of the Garda. It is worth recalling the members of the force who were killed and paying tribute to them. Great hardship was caused to their families. There were a few particularly vicious murders. I remember the one in Roscommon; I remember one around Navan; I think there was one in Wexford; there was one down on the quays. We should put on the record of this House today our tremendous tribute to the work of the members of the Garda Síochána and the work of the officers in the Prison Service. Far too often we pay lip service but we do not give them the necessary back up facilities. There is a lot of double think.

Apart from abolishing the death penalty, which is not being carried out, it is important that we give protection to our Gardaí and prison officers. That should be the focus point of a debate like this. In abolishing the death penalty our main aim must be to give adequate back up and support to members of the Garda Síochána and the Prison Service. We are not reneging on our responsibility to these officers. Far from it, we are going to ensure that there is total back up.

I welcome the fact that there will be a mandatory sentence for attempted murder. Some people have said that the 40 year sentences for murder is too draconian. It is important that the people to whom we continually look to defend us and look after our prison services should receive due recognition. I hope the Minister will look at other aspects of the problem where, maybe, the Garda need further back up, better training or better surveillance equipment. It is very difficult to send out unarmed gardaí who may come across armed robbers, subversives or other terrorists. It is important that we show today our total support for the members of the Garda Síochána and the Prison Service.

It is useful that Ireland is, among other countries, joining those who do not have the death sentence. With freer passage of people in Europe and in the light of the drugs problem, adequate protection must be given to members of the Garda. Perhaps the Minister, when replying, will indicate how he see the mandatory sentences working.

I would be grateful if you would now allow my colleague, Senator Raftery, to contribute.

I want a few minutes to put my support of this Bill on the record and my abhorrence of the idea that the State should take anybody's life. It has always been a source of amazement to me that we have this contradiction where the State would actually commit murder to take revenge, as it were, because another person had taken a life.

It is well for us to bear in mind that the vast majority of murders are not premeditated. They are crimes of passion. They are happenings that occur on the spur of the moment. Having said that, it is also well for us to remember that every execution is a cold blooded, premeditated taking of a human life. It is done in our names. That is what I object to. I am very pleased to support this Bill.

In relation to capital punishment, there was a time when it was an act of revenge. Then, when that was unacceptable to society, it became, according to the legislators, a deterrent. I can find no evidence anywhere that capital punishment acts as a deterrent to crime. Indeed, if I could I might soften my views on the subject, but I cannot. One has only to look at the experience in the United States, where there are hundreds of people on Death Row, and it is not deterring criminals there from murdering — murdering policemen, murdering prison officers and so on. I do not think that the argument of the death penalty deterring crime holds up. Perhaps a long prison sentence is even more of a deterrent to these kinds of people.

I know that we have a marvellous police force and an efficient prison officer force, but I think we could help and protect them a lot more effectively by cooperating with them and by the public giving greater co-operation to the police force. Our Garda need all the help they can get. By helping them we will ensure that criminals are brought to justice. In that respect also I think the State could do a lot more to help them if we were more efficient at bringing to justice and extraditing those who are guilty of crimes in other countries. I think the anomalies in relation to extradition should be cleared up, because these people on the loose here are a danger to society as a whole, and to the Garda in particular.

I support this Bill fully. I have always held the view that it was wrong for the State to take a life. I am delighted to see this Bill now coming before the House and, please God, it will soon be law.

May I begin by congratulating the Minister on bringing this incredibly important legislation before us here today? In bringing forward this legislation he is following in the footsteps of another great Minister of Justice who, in 1964, introduced legislation to abolish the death penalty for all but three categories of offences. I refer, of course, to our Taoiseach, Deputy Charles Haughey, whose reforming zeal in his many Ministries was ever evident. I say "incredibly important" because it is. If we pass this law then no longer will the State officially be involved in revengeful taking of life. I cannot say, however, that it is timely for it is a piece of legislation that should long ago have been passed in what we claim is a civilised country. I am glad that we are daily becoming more civilised because a great Christian existentialist, Nikolai Aleksandrovich Berdyaev, has said that the condition of people's moral consciousness may be gauged in a sense by their attitude to capital punishment.

As we move towards the elimination of this barbarous, archaic custom we hopefully take one step upward to a higher plane of civilisation. It is all too easy to give in to the demands of those who call for the retention of capital punishment. I can, indeed, understand their fears. I can empathise with those members of our peacekeeping forces and our security forces who, from time to time, may come face to face with a gangster or a terrorist who, because of greed or adherence to some misguided philosophy, remorselessly guns down one of their number. The Garda, in particular, have lost men in such circumstances and have called — I suppose, understandably — for the retention of the death penalty. I believe that the death penalty is a punishment that is intolerable to the imagination. It is — and if you care to contemplate on this you will be forced to agree — a public sin of sloth. Why do those who call for the retention of capital punishment do so? Well, their principal argument is that it has value as an example. This State does not hang people to punish them but to intimidate, by a terrifying example, those who might be tempted to imitate their actions. We, or should I say society, does not hang people for revenge. No, society merely protects itself. But I put it to the House that there exists not one whit of scientific evidence to support the claim that the existence on our Statute Book of a law requiring capital punishment, whether as a reality or as a threat, will stop an angry, insane or psychopathic person committing a murder.

I also put it to the House that most of the Irish people do not believe that the execution of a convicted murderer or someone guilty of treason has much value as an example, because if they did really believe this why then would we not have public executions which would be filmed and shown over and over again on television? That is where all those potential murderers would learn from the example. Of course, we no longer believe this. We no longer hang people in public, nor indeed in private, nor would we agree to the publishing in our daily newspapers of pictures of the condemned man swinging from a noose. If we really believed or subscribed to this idea of capital punishment being used as an example to all, surely we would be hanging people in the middle of Croke Park, where there is seating capacity for thousands. People would be invited from far and near, refreshments would be served. The whole family could attend and the children could come along for a day; and soon there would be no more horrific crimes committed. We do not really believe in doing this. Let us speak no more of the effectiveness of the death penalty as an example.

While a scenario which I just sketched may appear to us here in Ireland as being somewhat unreal, it is not as far-fetched as it sounds. Even today the death penalty in many countries is carried out in public. I would like to read a brief quotation here from an article in The Irish Times of Thursday, 17 August 1989 entitled “When the state kills” by Patrick Comerford. He said:

In many countries the death penalty is carried out in public. In Nigeria, where many prisoners have been publicly shot, thousands have come to witness the spectacle. In China, public executions are common despite being prohibited by law. In Saudi Arabia, the corpses of those beheaded are displayed in public for up to an hour. Public executions are staged in many countries as a deterrent against crime, but research carried out in the US suggests that these executions may have the opposite effect, brutalising society and causing more violence.

Men, women and even children are executed around the world. They are hanged, shot, electrocuted, gassed or poisoned. In seven countries — Iran, Mauritania, North Yemen, Pakistan, Saudi Arabia, Sudan and the United Arab Emirates — certain prisoners are stoned to death, usually for adultery.

Beheading by sword is used in at least five countries — Mauritania, North Yemen, Qatar, Saudi Arabia and the United Arab Emirates. Several blows are sometimes needed to sever the head, depending on the weight of the sword and the strength and accuracy of the executioner.

And shooting by firing squad does not make it any quicker. Because it is an easier target, a squad may be told to aim at the body rather than the head; in Taiwan, a prisoner was found to be breathing over an hour after the first two volleys had been fired.

It still happens in many countries in public. For example, between 1983 and 1989, 900 people were executed in Nigeria — many of them in front of huge crowds, including children. In Iraq, more than 1,000 executions have taken place during the last ten years. In Iran, since the revolution, thousands have been executed; some of these have been carried out in public and the victims were shot, hanged or stoned.

Once again I will refer to this article where it describes a stoning:

According to one eyewitness account of a stoning in Iran, a lorry "deposited a large number of stones and pebbles beside the wasteground and then two women were led to the spot wearing white with sacks over their heads." The women were "enveloped in a shower of stones and transformed into two red sacks," according to the eye witness. The wounded women fell to the ground and Revolutionary Guards smashed their heads in with a shovel to make sure that they were dead."

George Bernard Shaw said:

Criminals do not die by the hands of the law. They die by the hands of other men. Assassination on the scaffold is the worst form of assassination, because there it is invested with the approval of society.

It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind.

It is a compelling thought.

No, I do not believe the argument that execution acts as a deterrent, nor do I subscribe to the idea of capital punishment as an example. Those countries which use it have not reduced crime or civil unrest. Indeed, sometimes the opposite appears to be the case. For example, executions in South Africa during the last decade average about 100 per year and some years figures have exceeded 200. The death penalty in South Africa is mandatory for murder, and this includes conspiracy to murder and even being present in a crowd when murder is committed. Yet, the crowds gather ominously in that beleagured bastion of apartheid.

During last year there were 2,100 prisoners on Death Row awaiting execution in the United States, while lawyers got rich on appeals and counter-appeals. Surely this is nothing short of barbarity. It is interesting to note that some 40 years ago, on 21 November 1951, the late Séan MacBride said in Dáil Éireann that it was "probably no exaggeration to say that the concept of capital punishment had its origin in barbarism." I believe that capital punishment cannot intimidate a man who does not know he is going to commit a murder. I also believe it will not intimidate a man who deliberately sets out to perform a premeditated murder. Arthur Koestler relates a story from the time when pickpocketing was punishable by death in England, that when a pickpocket was being hanged other pickpockets worked the crowd.

Statistics during the first 50 years of this century show that, of 250 men hanged in England, 170 had previously attended one or even two public executions. Even as late as 1886, out of 167 men condemned to death in Bristol Prison, 164 had attended at least one execution. The facts speak for themselves. All statistics show that in the countries that have abolished the death penalty the incidence of crime remains the same; it neither rises nor falls. It seems safe to conclude that there exists no connection whatsoever between the existence of capital punishment and crime. The death penalty intimidates no one.

There is only one answer that some people make to this statement. They say "It is true that nothing proves that the death penalty is exemplary." It is even certain that thousands of murderers have not been intimidated by it. But one cannot know who has been intimidated by such a penalty. Consequently, nothing proves that it does not serve as an example. These people are willing to allow the penalty that involves the ultimate forfeiture of the condemned man. Yet, the exercise of this privilege by society, that is, a fixing of the man on the definitive rigidity of death, is based on nothing more than unverifiable possibility.

There are other objections. Capital punishment brutalises all of us. William Thackeray went to see a man being hanged and wrote "On Going to See a Man Hanged". He said:

Blood demands blood. Does it? The system of compensation might be carried on ad infinitum— an eye for an eye and a tooth for a tooth, as by the old Mosaic Law. Why, because you lose your eye, is it that of your opponent to be extracted? Where is the reason for the practice? Knowing that revenge is not only evil but useless, we have given it up on minor points. Only to the last we stick firm. I came away from Snow Hill that morning with a disgust for murder, but it was for murder I saw done. I pray to Almighty God to cause this disgraceful sin to pass from among us and cleanse our land of blood.

That is what I pray for here: that our lust for revenge will not be satisfied by the taking of a life. All human life is sacred. Only God can give life and only God should take it away.

Even Leonardo da Vinci said "And thou, man, who by these my labourers dost look upon the marvellous works of nature, if thou judgest it to be an atrocious act to destroy the same, reflect that it is infinitely atrocious act to take away the life of man." Yet, we see daily, as I have said, the taking of life in the name of peace. This disregard for the life of another is exemplified par excellence in the systematic murder daily of thousand of innocent people. I refer of course to the unborn, the young nestling in their mothers' wombs who are systematically poisoned or sucked out in pieces, their tiny bodies ending mutilated in the refuse sacks of modern sterile medical clinics, their lives ended almost as soon as they have begun.

Let us not add to this disregard for human life. Let us end, once and for all, this barbarism. Seán MacBride was a distinguished lawyer and he did not lightly refer to capital punishment as barbarism. The reason I stress the barbarity of the act is because I want people to appreciate that when somebody is hanged, he is hanged in their name, on their behalf. As Father Austin Flannery said "Most obviously so in a democracy."

We would all share in the responsibility if a hanging were to occur. What an awesome responsibility that is. We claim to revere human life and yet in the name of the law we may take it. That great Quaker reforming politician, John Bright stated:

A deep reverence for human life is worth more than a thousand executions in the prevention of murder; and is, in fact, the great security of human life. The law of capital punishment, whilst pretending to support this reverence, does in fact tend to destroy it.

What of all those innocents who died on the gallows? We think of the execution of William Orr, whose innocent body swung from the gallows of Carrickfergus on 14 October 1797. He was a United Irishman, a champion of Northern Presbyterian patriots. His execution was one of the darkest blots of the administration of English rule in our country. In our own day there have been many summary executions, like those of Gibraltar, which, although lacking the panoply of the court room, were nevertheless executions carried out at the behest of the State. What, everyone asks, would be the outcome of the Guildford Four had they been hanged? "Too late, too bad" would probably be the reply. No, my friends, this awesome responsibility which the State can take to snuff out someone's life, someone who may later be proved to be innocent of the crime of which he had been originally accused, this awesome responsibility does not sit well upon my shoulders and I do not want any part of it.

It is important to speak openly of the reality of capital punishment. We have a habit of pushing out of our awareness the things that are unpleasant. Albert Camus, speaking of this tendency, said:

The death penalty is to the body politic what cancer is to the individual body, with perhaps the single difference that no one has ever spoken of the necessity of cancer.

Let us move to a more enlightened age where we no longer resort to State violence as a instrument of revenge. Let me end with the words of Victor Hugo, who said:

In the early ages, the social edifice rested on three columns — Superstition, Tyranny, Cruelty. A long time ago a voice exclaimed "Superstition has departed!" Lately another voice has cried "Tyranny has departed!" It is now full time that a third voice shall be raised to say "The Executioner has departed!"

An Leas-Chathaoirleach

I wish to point out that we have four speakers indicating their wish to speak and we have 33 minutes left. I wonder if it is possible for them to share the time?

I would like to share my time with Senator Brendan Ryan. The other parties made an agreement to guillotine this Bill and the first thing I would like to say is I think it is a most remarkable and unfortunate irony that, introducing a Bill abolishing the death penalty, the Government should choose to operate a parliamentary guillotine——

An Leas-Chathaoirleach

The Senator agrees to share his time with Senator Ryan, is that right?

I am doing that, yes.

On a point of order — it was agreed by the Whips——


It was not agreed by the Whips; that is incorrect. It was not agreed by a Whip acting on behalf of the Independent Senators.

The first point has been effectively made for me. I would like to give five minutes to Senator Ryan — I think that is what he asked for. I would like to protest in the strongest possible form at the employment of a guillotine on this very important Bill. I would like also to say — I think not in a nasty way, but just to remark — on the interesting delicacy of Senator Conroy, who displayed such fastidiousness when on the only occasion I, on legal advice, read four paragraphs into the record, he chastised me for reading my speech. But it is noticeable that he did not feel such delicacy when every Government speaker read every word. I did not mind because I thought the speeches displayed a dazzling intellectual range, and perhaps writing is a talent in which the Fianna Fáil Party excels.

Of course, I welcome the Bill. It is an immense pleasure for me to open the first page of the Bill, turn it over and see on the first effective section, section 1, "No person shall suffer death for any offence". It is a proud day for this country that we have achieved this position. I would maintain that the death penalty was in any case completely unconstitutional. I have been treated over many years to lengthy disquisitions on the Christian and democratic nature of the State, and I am actually getting quite averse to people bleating about these two characteristics as if they were the most Irish qualities. I do not actually believe that they are. But if the Constitution of this country claims to be Christian, let it be placed on the record that there is no ambiguity whatever in Christianity: "Thou shalt not kill" is in the Old Testament and it is reinforced in the New Testament, where Christ rebukes Peter for a minor act of violence in cutting off the ear of the military attendants. I would maintain that this is an advance in the direction of Christianity.

I am glad that everybody noted how repugnant, disgusting and immoral it is that the apparatus of the State should be called in in a premeditated way to eliminate the life of a citizen. There are a series of arguments against the retention of the death penalty; one is, of course, that the judicial process is itself fallible. Mistakes can be made; they can never be rectified. Not only can mistakes be made, but mistakes very clearly have been made. I recall the case of the Christie murders, for example, which was documented in a brilliant book by Ludovic Kennedy, 10 Rillington Place, in which, with extraordinary forensic skill, he demonstrated quite clearly that it was not Timothy Evans who had committed the murders at that address; it was in fact Christie himself. Yet this man of reduced intelligence was pathetically sent to the gallows. So, the first point I would make is that mistakes can and often are made.

I think it is interesting to look at the analysis of the social spectrum from which the victims of the death penalty frequently come. If you look to America, for example, where there is an increasing appetite apparently for execution, you will find that a predominance of victims come from the mentally subnormal, the poor and the black. There is an element of vindictive class justice involved in the execution process. I would, of course, maintain that the death penalty is always wrong in any case. I would like to place on the record of the House my tribute to Senator Shane Ross for so doggedly pursuing this matter through the House. I have to say that I was very interested to hear the contortions of the two principal political parties having engaged in — and we are having today a sort of parade of innocence — a parade of virtue. Well, it is lately acquired is all I can say, having listened to Senator Ross.

I would also like to place on the record the fact that a great Irish dramatist, Brendan Behan, was early in the field with a superb play — I saw one of the earlier performances in the old Queen's Theatre in Abbey Street, I think it must have been in the 1950s. I speak, of course, of The Quare Fellow. The remarkable thing about that play was the way in which it brought home to the audience what speakers on all sides of the House have said: that this calculated murder, judicial murder, was being carried out by the State in the name of the citizens. The play magnificently turned on a pivot in the final act and turned the whole force of the drama round back on to the audience, to indicate to them that this was being done in their name, on their behalf; and that, I suppose, was about four or five years since the last execution had taken place in Mountjoy and while the death penalty was, paradoxically, a very live issue indeed. I would like to quote, if I may, from that play to give something of the feel of what it meant inside a prison.

First of all, there is an exchange between Warder Regan and a prisoner called Crimmen, in which Warder Regan explains how the executioner takes the measure of the prisoner who is about to be hanged. Warder Regan says: "He gets the quare fellow's weight from the doctor so as he'll know what drop to give him, but he likes to have a look at him as well, to see what build he is, how thick his neck is, and so on. He says he can judge better with the eye. If he gave him too much one way he'd strangle him instead of breaking his neck, and too much the other way he'd pull the head clean off his shoulders." Crimmen says: "Go bhfoiridh Dia 'rainn." The hangman then comes in, having inspected the prisoner, and says: "Well set up lad. Twelve stone, fine pair of shoulders on him." There is a savage irony in that, that electrified the theatre the night I saw it.

It struck me this morning. I went down to my rooms in college and got the play out again, but that was not in fact principally the speech I remembered. I remembered an earlier speech of Warder Regan where he describes the effect of an execution on a young chaplain who has to accompany the condemned man. He says:

The young clergyman was great; he read a bit of a Bible to the little Protestant lad while they waited and he came in with him, holding his hand and telling him, in their way, to lean on God's mercy that was stronger than the power of men. I walked beside them and guided the boy on to the track and under the beam. The rope was put round him and the washer under his ear and the hood pulled over his face. And still the young clergyman called out to him, in a grand steady voice, in through the hood: `I declare to you, my living Christ this night... and he stroked his head till he went down. Then he fainted; the Canon and myself had to carry him out to the Governor's office.

Warder Regan is one of the most extraordinary creations of Brendan Behan, because he is a sympathetic and humane warden enmeshed in an appalling situation. This, however, is not always the case. Not all those who are called upon to witness executions are so humane. I would like to quote from the newsletter of Amnesty International. I would like also to signal my appreciation, as a public representative, of Amnesty International, who have monitored the situation worldwide and consistently supplied Members of this House with information.

I refer to an article which deals with a woman called Marie Deans. Marie Deans was a close relative of somebody who was brutally murdered, but her mind was affected very strongly by the remark of one of the policemen subsequent to the murder in 1972 who said: "Don't worry, honey. We'll get the killer and we'll fry him". As a result of her horror at this attitude she founded the Virginia Coalition on Jails and Prisons. They protest at executions and they document them. This is what the result is, from the great silent majority:

Marie works on a shoestring, day and night for the Coalition. For her efforts she is subjected to a barrage of late night anonymous phone calls, ‘nigger lover' abuse if the condemned man is black, a stuffed body bag left on her doorstep, hate letters, the figure of a corpse painted on the pavement outside her house.

When an execution is about to take place in Virginia, crowds turn up for the spectacle, beer is sold,

— In fact, we get a description of precisely what Senator Lydon felt was almost a kind of a fantasy —

people are ‘whooping and hollering', music is playing, songs in favour of the death penalty are sung, and effigies of the condemned man are carried. Slogans are painted on placards, ‘Fry the Coon'.

Across the road there is a candlelit vigil conducted in a more silent and dignified manner.

I would like to turn to some other aspects. My principle is that the death penalty is always wrong, that it is an extraordinary arrogance on the part of either one person or a state to remove the possibility of existence from another person. I consider myself a religious man. I do not know what, if anything, lies beyond the grave — perhaps nothing, perhaps something — but that is a matter of faith. Nobody knows, nobody knows. You may believe, but you do not know. We do, however, know that you are to all intents and purposes removing the only possibility of sentient existence from another human being; you are obliterating an entire world, and I believe that is the most extraordinarily arrogant thing anybody can do.

It is arrogant when it is done by the State and by an individual. I think it is arrogance unparalleled when it is done by groups such as the IRA. I was very glad, indeed, to hear speakers from all sides of the House say this. The Minister is very wise when he says that removing the death penalty actually removes the possibility of martyrdom from these people. I would not want them to be executed, and I say this having myself received a death notice that purported to come from the Provisional IRA. My attitude at that time and subsequently is that, even were I to be snuffed out, I would not wish anybody to die as a result of my murder. I do not think that is at all an appropriate thing.

I think the Government, if they are sensitive in this area — and they clearly are from what the Minister says — should consider giving an early opportunity for debate on the kind of amendment to the Constitution I proposed in a motion, which would add to Articles 2 and 3 a specific prohibition on violence. I do not see how anybody could have any problem with that. I think it is absolutely necessary now, because recent court cases have demonstrated that the IRA feel that they do not have a constitutional justification for murder. I have to say this in the light of the obnoxious, irresponsible and dangerously ignorant remarks of the Mayor of New York, David Dinkins, reported extensively last week, where he described an IRA man convicted of murder as being merely a soldier who had killed another soldier. Are we prepared to tolerate that? Are we not morally bound to repudiate it? I am not, of course, calling for the execution of the person involved; but to allow the mayor of the principal city of the United States of America to get away with that one unscotched would be grossly irresponsible.

I was very impressed by Senator Ross's arguments about the discrepancies in sentencing, the ten years versus 40 years argument, and I would like to say that I am also worried by discrepancies in sentencing. I remember the case of the "queer" bashing in Fairview Park where a judge let three young murderers off — they walked scotfree from the court with suspended sentences. They subsequently committed further serious crimes. There is also a case to which I have alerted the Minister in which a man who was an accomplice had suffered a far more severe term of imprisonment than the people who actually committed the murder, and there was medical evidence to show that he was incapable of committing the murder. I add my voice to those who have indicated that perhaps the Minister could also look at discrepancies in sentencing.

I commend the Bill to the House. It is a proud day that we are here.

An Leas-Chathaoirleach

You have four minutes, Senator.

I want to use the first of those four minutes to put very clearly on the record of this House that in nine years of very active participation in the work of this House this is the first time in which I have been restricted in what I could say or the time I could use on Second Stage debate on any piece of legislation and I am extremely annoyed. I am not blaming anybody. I am simply saying that it is the first time in my nine years in this House that this has happened to me and that it should happen on an issue of such symbolism annoys me intensely.

I congratulate the Progressive Democrats for drawing Fianna Fáil into the late 20th century, the late European 20th century, and requiring them to do what the rest of Europe has already done. They deserve to be congratulated on it. I had to sit here through the spectacle in 1981 of that most liberal and progressive of men, Senator Eoin Ryan, father of the present Senator Eoin Ryan, a man of impeccable human rights credentials, being required by the opportunism of his party to oppose the abolition of capital punishment. It was a painful spectacle; it was not a very nice thing to see. I am glad we are finished with that and the Progressive Democrats deserve congratulations for nailing that.

Having said that, there is a habit in this country of perpetually branding this country as allegedly among the most illiberal in the world and drawing the most remarkably unfair parallels. In a large country that Senator Norris referred to, some 3,000 miles away, there is a most horrific rush towards execution in which one-time liberals are falling over each other to change their views on execution. Debates are now more about how many you should execute, who you should execute. The Supreme Court has apparently given carte blanche that mentally handicapped people can be executed. I am very proud that this country is moving in the opposite direction and we are saying firmly — and I believe for ever — that there will be no more State killing of convicted prisoners in this country. It is a good day for this country and a good day in regard to where we stand and the values we subscribe to.

I do not think, however, that one should allow the occasion of the abolition of capital punishment to pass without reflection on the fact that it is now roughly 2,000 years since Christianity began and for the best part of 1,900 of those 2,000 years virtually the entirety of the Christian Churches, notwithstanding the rhetoric, supported executions and State murder. Indeed my own church is still on a hook where it says that it believes capital punishment is morally justifiable but should not be used, which is only a step away from where it used to be. We could, perhaps, reflect justly on the fact that my own church, the Roman Catholic Church — I happen to know more about it — was involved in executions, and in the burning of witches, and there are papal documents justifying death by burning. The Christian churches did not help. It was unfortunately, forces outside of mainstream Christianity that espoused the cause of liberalism.

There are a lot of other things in the Bill. I find it ironic that I will be introducing a number of amendments next week but that I do not have time to tell the House what the amendments will be to invite at least some preliminary comment from the Minister on all aspects of the Bill because this House, in its wisdom, has deprived me of the time.

This Bill is not just about mandatory 40 years sentences for murder; it has a mandatory 40 year sentence for treason. I invite the Members of this House to look at the legal definition of treason. I will have a series of amendments to put down and unique in my experience, I am not allowed by this House to even tell the Minister what they will be. I apologise to the Minister; I did not make the rules.

An Leas-Chathaoirleach

We have 13 minutes left and I ask the three remaining speakers, Senators Ó Cuiv, Harte and McDonald to try to share the time between them if possible.

Cuirim fáilte roimh an mBille seo. Is dóigh liom go bhfuilimid anois ag plé ábhair gur thóg an pobal i gcoitinne cinneadh air i bhfad ó shin go bhfuil an pobal tar éis deireadh a chur le breith an bháis agus nach bhfuilimid i dTithe an Oireachtais ach ag cur an dlí in oiriúint do thuairim an phobail.

I welcome this Bill. Today we are bringing the law in line with what is the common thinking of the community at large. The fact that since the fifties, no death sentence has been carried out in this country shows that society long ago made up its mind that capital punishment, not only did not serve as a deterrent, but has no moral justification whatsoever. It is very important, when issues like this come up, that we do not become prisoners of the thinking of other ages because if we believe in the development of society, we have to think and make our decisions based on what I hope would be more enlightened attitudes of society nowadays and different attitudes generally towards punishment and deterrents.

There have been, as was mentioned in the House, various reservations expressed by the representative association of the Garda Síochána. In my view if we want to reduce the incidence of serious crime, we have to look at reforming the structures in society, not to the level of the punishment we mete out. That is the fundamental challenge that faces us as a society. It is fair to examine the background and the history of people who are continuously involved in serious crime. This will be seen more as a product of society and of people's background than as a deterrent or punishment. I would also like to echo what Senator Raftery said, it has always been a peculiar anomaly that the death sentence of capital punishment has been imposed for murder which often is a crime of passion whereas perpetrators of other very serious premeditated crimes have not suffered this punishment.

Society and the institutions of State should set the example. If we want to set an example it is important that we do not employ the same standard as the criminals when it comes to punishing those who commit serious crime. It is time to look once again at the whole penal system to see if there are better ways of reducing crime in our society, punishing offenders and, more importantly, trying to rehabilitate those involved in serious crime. However, that is obviously a debate for another day, but this must be the ongoing question of all who are interested in reducing the incidence of serious crime in our society. The shape of society is a big factor here and we must work unremittingly.

One of the causes of crime has been the unsatisfactory political situation in this island and the instability created by it. It is fair to say that a lot of the serious crime in this State in the last 20 years has been the result of the problems in the Northern State. Once again, we must put our minds, not to ritual condemnation of that problem but to resolving it bringing peace to this island and reducing the incidence of serious crime in our country.

I welcome this Bill. It is timely and, as I said, the Community have acted ahead of us in this case and I am glad to say, ar a laghad is fearr deireanach ná go bráth.

I thank Senator Ó Cuív for sharing his time. My views on this subject are on record since 1981 but there are one or two points worth making again. I welcome the Bill. This is an appropriate time to introduce it in view of the fact that we are just coming out of the Council of Europe Presidency.

I can understand the fears of our gardaí but most of them would accept that it is a debatable point whether any person apprehended while committing a crime or in breach of the peace would be aware that the death penalty existed, or that he would even care. On the other hand, it is quite clear from all the speeches we have heard here today, that there is no way we could convince the public that the hangman can protect them from cold-blooded killers. The hangman has nothing to do with protection. For example, we have evidence that the death penalty has failed as a deterrent. The evidence also shows that the abolition of the death penalty has not led to an increase in the number of murders.

If we want to be convinced that the death sentence should have been abolished long ago, we have only to look at the case of Caryl Chessman in the United States. After 12 years of an Herculean struggle against the system he had the misfortune to go to the death chamber and in six minutes his life was taken by the State. There was evidence that a wrong telephone number was given. The judge could not get through because the girl who made the telephone call was under pressure. Therefore, Chessman was executed while the judge was trying to make a phone call. The judge was about to award another hour and a half so that further evidence could be examined but the pellets had been dropped and the execution was carried out. The point I am trying to make is that in the hour and a half other moves could have been made and evidence could have been produced. One of the judges was about to retire who was against granting clemency. The whole system was seeking revenge against one man who was in a marathon fight for his life. As far as he was concerned he was in a struggle against the system while the system was resisting evil by violence.

We have seen evidence of the State trying to put down terror by using greater terror, by using criminal punishment to put down cruel behaviour. It seems to work in the opposite way. There is sufficient evidence to suggest that all the threats of retaliation do not deter the committing of terrible acts. As Senator Lydon pointed out, in the good old days in London people were hanged in public for petty thievery and pickpockets were sentenced to death. When questioned, 164 out of 167 admitted they had witnessed executions and it was no deterrent to them. Dr. Berg wrote an article called "The Psychology of Punishment" in the British Medical Journal of Medical Psychology in 1945. I will quote one observation from it. The people engaged in criminal activities who witnessed public prosecution for theft admitted to him that it was not a deterrent. The Chessman case has done more to rally the abolitionists throughout the world.

An Leas-Chathaoirleach

I wish to remind the Senator he has only three minutes left. I understand he is sharing his time with Senator McDonald.

I will leave it at that.

I would like, very briefly, to put a few points on record. This is an extremely important piece of legislation. I do not want to criticise my colleagues in any way. We will have an opportunity on Committee Stage to make whatever points that are needed. I was here in the House in 1962 when we had a very full debate on this topic. I remember the very forceful speech of the late Senator Boland who was enjoying his first term in this House after a very long and distinguished career in the other House.

I believe the death penalty is a deterrent. I read in a magazine that some American states are reintroducing it. In Ireland the general public are always sympathetic towards the underdog. When people are sentenced they are very sorry for them and the unfortunate victims are often forgotten. I have some concern about the members of the Garda, the security forces and indeed the prison service. These people should know the State cares for them and understands the dangerous occupations they have. In my county in the 1970s a bomb was planted by subversives and Garda Clarkin lost his life near Portarlington. That is a long time ago but a colleague of Garda Clarkin, Garda Peters, has suffered since then. He had had to endure an extremely disabled lifestyle. That is some sentence. Then, there are people who say that these people who commit these crimes should get off with three years and they should have remission for good conduct. We should have some priorities here. I regret the leniency in section 4 but we will have an opportunity to deal with that.

A whole area has not been addressed; I refer to the actual prison regimes. I would prefer to face Pierpoint than to face a 40 year jail term in Portlaoise Prison. That would be a living hell. Absolutely no crime should call for that as retribution or punishment. That does not mean that the situation there cannot be improved. Prisoners should certainly be deprived of their liberty but psychological punishment should not be brought in. There should be greater emphasis and more resources spent on rehabilitation and in creating an atmosphere that would allow prisoners to relax. At all times the dignity of the person should be guaranteed, even in our prisons.

An Leas-Chathaoirleach

I must ask the Senator to conclude.

I will conclude as we have gone over the time but then we started six minutes late this morning. It is a pity we did not have a better chance to discuss this Bill on Second Stage because there is a whole range of areas which are relevant as a substitute for the death penalty, which everybody here is glad to see removed from our Statute Book. Perhaps the Leas-Chathaoirleach will be more lenient when we come to Committee Stage.

I would like, on behalf of the Minister, to thank Senators on all sides of the House for their contributions to the debate. I certainly will convey to him, in as detailed a way as I can, the views that were expressed and require further consideration between now and Committee Stage. I would also like to thank Senators for some very nice complimentary remarks both to the Garda Síochána and to the prison officers.

Reference was made to the fact that the Minister for Justice was unable to remain on here for the full Second Stage debate. I must convey his regrets to the House and indicate that he will be available for the full Committee Stage. Senators, no doubt, will be aware of the practice of trying to accommodate both Houses which means that for some of us at least the task of deputising for Ministers arises from time to time. If that practice was not to continue it would, mean inevitably, that the Seanad might not have the opportunity to consider legislation in the same sense it has up to now. For all Governments that has been the practice down through the years. Perhaps Senator Ross and myself from time to time have differed on some essential points and that may have led to his interjection on that matter.

The issue of crime and punishment, particularly capital punishment, is an emotive one on which people can hold very strong and opposing views. However, it is clear from the debate taking place here on this Bill, and indeed from the debate which took place on it in Dáil Éireann, that there is general approval for the abolition of the death penalty. It is also obvious, however, from certain contributions to the debate that there is not total approval for the replacement penalty proposed in the Bill. This is hardly surprising as there are no absolutes in this area. It really boils down, in the final analysis to a matter of judgment.

The Minister explained very fully why he had decided on the penalty proposed. The reasons he gave were compelling and cogent. I do not, therefore, propose to go over that ground again. I realise that the contrary view taken by some Senators is based on deep conviction and that they are unlikely to be dissuaded from their views by further elaboration of the arguments already adduced by the Minister. This is a matter on which we must simply agree to differ.

I see no objection, in principle, to the suggestion by Senator Neville that the operation of section 5 of the Bill be reviewed after a suitable period. However, I am not convinced that putting a statutory requirement for such a review into the Bill is a good idea. I would be concerned that such a provision might be seen as a weakening of the force of that section which, as the Minister pointed out in his opening remarks, is necessary and very firm in its effect.

Senator Neville expressed disappointment that the Bill did not cover the wider area of sentencing. This was also raised by Senator Costello and a number of other contributors in pressing for wider use of alternatives to imprisonment, particularly for minor offences.

I am not sure what provisions Senators would like to see in this Bill but I would point out that the courts have an extensive range of options open to them when sentencing offenders. These include suspended sentences, probation, fines and community service. These alternatives are fully employed by the courts in suitable cases and, indeed, the community service order system is proving very successful and in increasing use as an alternative to imprisonment.

I would like to thank Senator Mullooly for his contribution and particularly for drawing the attention of the House to the fact that murder is not a scheduled offence under the Offences Against the State Act. I will, no doubt, be passing on his remarks to the Minister. I do not know whether it is because it is World Cup time but some contributions strayed and there were no white flags raised. That is perhaps because in a Bill like this we want to find solutions to prison service difficulties and to sentencing. Clearly it is not within the ambit of this type of Bill to solve many of the problems there. They are being addressed in their own right as Senators will know, in the Department of Justice and the Minister has taken a number of initiatives in these broader areas.

Senator Costello raised a number of very specific points which are much more relevant to the Committee Stage. I will ask the Minister for Justice to address these points and see if there is an ambit within the context of this Bill for their further consideration and elaboration.

I would like to thank Senators for their interesting and constructive contributions to this debate. Without undue exaggeration I can say that the legislation on which we have embarked will be a milestone in the evolution of penal policy. When this Bill is enacted we will have shed the last vestige of a rather cruel pre-20th century approach to crime and punishment. The death penalty, like whipping and transportation, will be no more. Most Senators I believe will join me in applauding its departure.

Question put and agreed to.
Committee Stage ordered for Wednesday, 27 June 1990.

An Leas-Chathaoirleach

When is it proposed to sit again?

At 2.30 p.m. next Wednesday.