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.