Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 27 Jun 1990

Vol. 125 No. 12

Private Business. - Criminal Justice (No. 2) Bill, 1990: Committee Stage.

I welcome the Minister to the House. We have a grouping of amendments.

I understood the Minister for Justice would be with us today; in fact, the Minister of State made this point during his winding up speech last week. The Minister for Justice is not present. Surely on such an important Bill as this we would expect the Minister to be present.

That is not a matter for me or for the House. The Minister of State is here and that suffices.

May I record my disapproval. I find it quite offensive, and it is no disrespect to the Minister of State who is a very pleasant, likeable man, but we were told the Minister for Justice would be here.

We are on the Committee Stage of the Criminal Justice Bill.

He was not here for Second Stage and he is not here now. It is grossly unfair.

The Minister of State is here. There is no point in making a useless protest in this regard.

It is not a useless protest. It might get through to the Government.

As far as Committee Stage of this Bill is concerned the matter the Senator is discussing is irrelevant. The Minister of State is here and we wish to proceed with Committee Stage. Section 1.

The Cathaoirleach and I obviously have different definitions of irrelevant.

Surely the special expertise of a Minister in charge of a Department is a very relevent matter.

With great respect to you, Senator, I have no control over that.

Surely it is appropriate for the House to register its strong disapproval of the Government's attitude in this matter?

If the House is to do that it is not appropriate that it be done on Committee Stage of the Bill.

When should it be done?

Put down a motion on it.

We were promised the Minister would be here.

What is happening here is obstructive, to say the least.

It is not.

Committee Stage of the Bill should be allowed to proceed.


Amendment No. 1 is out of order and the Senators in question have been notified.

The amendment was put forward so that Ireland would be brought into line with the United Nations Convention on Human Rights, with the constitution of Amnesty International and indeed with international law.

It was ruled out of order because it was not relevant. The Senator was notified to that effect. It is not desirable that the Senator would continue to address something that has been ruled out of order.

Amendment No. 1 not moved.
Question proposed: "That section 1 stand part of the Bill."

The section states that no person shall suffer death for any offence. The definition of a sanction should be dealt with in terms not just of the abolition of the death penalty but where we stand in relation to the concomitant circumstances, in human degrading treatment, torture or corporal punishment. It is in that context I believe this section is somewhat limited and could have been improved upon. It is important that we state categorically where we stand in the international context, in relation to human rights as stated by the United Nations.

It seems astonishing that such an historic phrase would go through on the nod. There actually could be — and I do not wish to be obstructive — a whole series of issues to be raised on that section. I would like to say that at least on this we can compliment the Government. It is a fine phrase to have in legislation. It is about 20 years too late, but it is a fine phrase to have in it.

Question put and agreed to.
Section 2 agreed to.

Amendments Nos. 2, 3 and 8 are related and may be discussed together.

I move amendment No. 2:

In page 3, lines 20 to 24, to delete paragraph (c).

I agree that amendments Nos. 2 and 3 are related. The purpose of those two amendments — I am not so sure about amendment No. 8 and I have no doubt Senator Ryan will have something to say on that — in the first instance is to delete paragraph (c) in relation particularly to the Offences Against the State Act, 1939.

First, the Offences Against the State Act was emergency legislation. It was brought in on a temporary basis; it was not intended to be permanent. It was introduced at a time when the Second World War was breaking out and it has been used, and I would say abused, in very many cases since then. It is not a proper piece of legislation to be still on our Statute Book.

In the second instance, in relation to the furtherance of the activities of an unlawful organisation within the meaning of section 18, that is a very broad utterance in that it can cover the objectives of an organisation which could be conducted through any illegal means. It is not specific enough, so that it could cover virtually any organisation that does its business in an illegal way.

I think that in both instances, in terms of the emergency Offences Against the State Act and in terms of the scope of the term here, it is broader than subversion. It is not specifically related to the IRA or to the INLA, as it is generally intended, or people generally expect that it is. It is a very broad definition and it could refer to any organisation that does its business by illegal means and from that point of view I feel it would be proper to have that paragraph deleted.

In relation to paragraph (d), I think the position is even clearer — murder committed within the State for a political motive, or of the head of a foreign state or of a member of the Government or of a diplomatic officer of a foreign state. I think we have a major anomaly here in that the paragraph covers members, representatives of foreign Governments outside the State but it does not make any reference to similar people within the State. It seems rather illogical, to say the least, that we should specifically protect in this fashion the foreign head or a member of the Government or a diplomatic officer while we do not provide the same protection for our own members. If we could break it down, for example, are we talking about a diplomatic officer like Michael Smurfit who is the Consul in Monaco? Is that the type of person we are referring to? There is no protection, for example, for Senators or TDs or the Taoiseach. We saw a situation where Senator Fox was killed back in the 1970s and that was dealt with not as capital murder, so we do have a major anomaly here. I think it was better to eliminate the section entirely rather than to continue it. It is a situation that does not exist in similar legislation in neighbouring countries. These amendments to delete both paragraphs would clarify the matter and improve the legislation as it stands.

I disagree with my colleague, Senator Costello, on this. I think it is important, in the present position in Ireland where we have murderers and subversives for political reasons committing violent acts, both North and South, that we retain paragraph (c) in order to cover ourselves. My party disagrees with the amendment to remove paragraph (c) from section 3. We also disagree, for the very same reason, with the proposal to delete the reference to murder, committed within the State for political motives, of the head of a foreign State or a member of the Government of, or a diplomatic officer of, a foreign State. We feel under present circumstances that these must be retained because of the situation prevailing with subversive organisations and with some very cowardly murders that have taken place since 1969. We hope the day will come when we can freely remove such stipulations from our legislation.

With the greatest respect to my colleague, Senator Costello, I am amazed at him asking us at this time to remove a section of this very important legislation, which, as Senator Ryan mentioned a little while ago, the Senators who have not spoken should warmly welcome. That we do. In regard to the amendments, I am amazed that at this time Senator Costello would ask us to remove from this legislation anything concerning the Offences Against the State Act and that he wants us to spell out the activities of an unlawful organisation. I do not think that is needed.

In regard to paragraph (d), I did not think I was hearing right when he asked us to take that out of this Bill at this time. Like Senator Neville, I would hope that when things are better we could come back and amend this section, but certainly not in the atmosphere now could either of these provisions be removed from section 3 of this legislation.

Before we go into more detail I would like to ask the Minister, in regard to the proposal to remove paragraph (c) of section 3 (1), which is what we are talking about, whether the inclusion of section 6 of the Offences Against the State Act means that a murder carried out, say, by a vigilante organisation would be an offence under section 3?

I will also listen with great interest to what the Minister has to say on this section, because I think Senator Brendan Ryan made a very valid point when he drew attention to the historic wording of the first section of the Bill: "No person shall suffer death for any offence". I would like to remind the House there are people constituting themselves in groups in this country who consider that it is their right to sentence people to death for what they regard as offences. There are people here, politically motivated, who are quite happy to carry out a death sentence in the name of the Irish people regardless of the fact that they get less than 2 per cent of the vote. To my mind, that does make it a special category of offence.

The problem remains: what do you do with it? I do not think it is a good idea to give 40 years imprisonment, because I think people can change. However, I wonder if the Government have ever considered, or if there is any constitutional bar to the Government considering the possibility of the removal of citizenship for these people? That is something I would strongly urge the Government to consider if it is possible because it is not a physically violent method of retribution against these people. It is also one that would strike very clearly at the heart of what they regard as their ethos, and these murders are being carried out in the name of all of us. They assume to themselves the right to carry out a sentence of death in our name. We have removed this capacity from the State but there are extra State elements who consider they are entitled to do this. Perhaps that could be looked at.

May I say at the outset I am very pleased to be here deputising for my Government colleague, the Minister for Justice, Deputy Burke. He wished to be here and was committed to being here but, as you know, the Broadcasting Bill commenced Committee Stage this morning at approximately 11 a.m. and will go on until at least 1 a.m. tonight. Since he has not the facility of bilocation, I have no option but to replace him here, and I trust that the House can accept that as being part of the normal procedure of Government.

I have listened with interest to what has been said by the various contributors and in particular with regard to amendments Nos. 2, 3 and 8, which we are debating together. They would have the effect of removing treason and murders done on furtherance of specified offences under the Offences Against the State Act, 1939, and the murder of a diplomat or member of a foreign government from the category of capital murder. I cannot agree to this. Senator Ryan asked a question pertaining to vigilante organisations. The courts are very unlikely to hold that such an organisation comes within the scope of section 6 of the Offences Against the State Act unless it was of such proportions as to be a threat to the State, that is, a subversive organisation. It would be a matter for the courts to decide, based on the gravity of the situation and based on the information available to them. We must leave that interpretation to the courts.

Who said that? Who said the courts are likely to do that?

That is what I believe would be the situation. They will decide in a particular case the type of organisation, the permanency or otherwise of such an organisation, and the gravity of the offence. That is the normal situation. When the death penalty was abolished for murder per se in 1964, the then Government decided that it should be retained for treason and certain murders. That is what are termed capital murders at present and are listed in section 3 of the Bill. What these offences have in common is that they involve, in one way or another, an attack upon the institutions of the State. The Government recognised this relationship in 1964 and provided that these offences would all be punishable by a mandatory death sentence. Nothing has since happened which would suggest that the decision taken in 1964 should now be changed. It is logical, therefore, that the offences which up to now have attracted the death penalty should, on its abolition, continue to be the subject to a common penal sanction as heretofore.

Senator Costello spoke about the situation pertaining to unlawful organisations. It is true that the definition of an unlawful organisation in section 18 of the Offences Against the State Act, 1939, is extremely wide. The expression even covers any organisation which engages in, promotes, encourages or advocates the commission of any criminal offence — section 18 (d). It might be argued that this would even include a gang of robbers and burglars, but it is thought — and I wish to confirm again — that the courts would certainly hold that this is not the case, because the mischief at which the Act was directed was for more organised bodies than mere gangs. This is clear from the fact that the Act contains detailed provisions enabling the Government to make suppression orders declaring particular organisations to be unlawful organisations and providing for the consequences of such orders, including penalties for membership and confiscation of property of an organisation. These provisions are consistent only with the interpretation that organisations of substantial dimensions and continuing character are covered.

Senator Costello also queried the definition of diplomat. The definition of "diplomatic officer" is based on the defnition in the Vienna Convention on Diplomatic Relations. This is what is covered here.

In relation to treason, the effect of amendment No. 8 would be to remove it from the category of offences for which a minimum sentence of 40 years imprisonment would have to be imposed and to provide that a person convicted of treason would be sentenced to imprisonment for life.

Treason is a specific offence which is defined in Article 39 of the Constitution, and provides that:

Treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by this Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or to be concerned in any such attempt.

As this definition shows, a person will not be convicted of treason unless they are guilty of a most grave attack on the State and its institutions. Treason has traditionally being recognised throughout the universal world as one of the most serious offences a person can commit. This is reflected both in the fact that the offence itself is defined in the Constitution and that hitherto it has, as I said, attracted the death penalty.

I regret, therefore, that I will not be able to accept these amendments.

I, too, would like to express my opposition to those two amendments. I was glad to hear the Minister clearly reiterate exactly what the position is. While I agree that sections 1 and 2 of the Bill are perhaps long overdue, nevertheless it is important that the Government, on behalf of the citizens of the State, should be able to impose fairly stringent sanctions against people who would wilfully murder another person, more especially people such as gardaí and prison officers whose job it is to uphold the laws that are enacted for the guidance and security of the ordinary people of this State as well as people from other states who work here.

There are people who say we retained capital punishment as a deterrent, but I can think of no more fearful sentence to pass on anyone than 40 years in Portlaoise. It is indeed a very stiff sentence. I think it is necessary to have that because once a person is murdered, for whatever reason, they are dead, dead forever and that is it. This idea that the people who, for whatever reason or justification, should seek to get out in two and half or three years is a nonsense. It belies the fact that this is a civilised and democratic society.

The only country I have had the honour of visiting that did not have a strong penal code is Greenland. They did not have a prison in 1977. I am not suggesting that I earned the right to be put into it, but I was told that they did not have a prison system but that they dealt with offenders by "sending them to Coventry", to use the old cliché. This, of course, was almost making these people hermits and it was looked upon as a very stiff régime. But then that particular society has fewer then 50,000 inhabitants.

I think it is only appropriate that paragraphs (a), (b), (c) and (d) of section 3 (1) should be maintained. I think we are justified in ensuring that they should be retained so as to declare very clearly to all and sundry that Irish society do not take lightly the actions of persons who, for whatever reason, wish to inflict capital punishment through kangaroo courts or whatever on citizens of this State or of other states who are working here. I believe we must show our determination in this fashion and I would support the Minister's view on that.

First I did not ask the Minister about treason and I am interested that he replied to my amendment before I had actually spoken on it. I was trying to deal with this in a reasonably orderly fashion but it may be a problem that the Minister had to fill the breach at short notice.

On the issue of section 6 of the Offences Against the State Act, he did not answer me at all. The Minister has this wonderful faith in the courts. Does he realise that the Supreme Court, within the past 12 months, has made it perfectly clear that the Offences Against the State Act is part of the ordinary criminal code of the State and does not apply or does not have to be used exclusively for what might be called subversive offences but can be used by the Garda as part of the criminal code. Therefore, every section of it, where it would apply outside of subversive activities, can be used. I do not have the report number from the Supreme Court but I am sure the Minister's Department can tell him about the particular decision. I think Mr. Justice Walsh was the major author of that decision.

Section 6 of the Offences Against the State Act states that:

Every person who usurps or unlawfully exercises any function of Government, whether by setting up, maintaining or taking part in any way in a body of persons purporting to be a Government or Legislature but not authorised in that behalf by or under the Constitution, or by setting up, maintaining or taking part in any way in a purported court or other tribunal not lawfully established, or by forming, maintaining or being a member of an armed force or a purported police force, not so authorised, or by any other action or conduct whatsoever, shall be guilty of a felony.

If somebody committing an offence under that section commits murder — but not a member of the Garda, not a prison officer, not a category mentioned in the legislation as it stands — they are liable to a minimum sentence of 40 years in prison for setting themselves up as a police force, which might well be a vigilante group, which results in somebody being killed. We are saying that, for some reason the Minister has not yet given us, they must be categorised with people who set out and are responsible for the knowing murder of a member of the Garda. If that is what the Government want to do, then fair enough. But what they are telling us is that it is a very limited category of an offence. I think what happened here was that parts of previous legislation were inserted here without any thought. The same could be said about, for instance, the offence of obstruction of the President, and any murder arising out of that offence is liable to a minimum sentence of 40 years imprisonment.

It is one thing to talk about these extraordinarily frighteningly draconian sentences for people who are responsible for the murder of members of the Garda or prison officers, particularly if you define prison officer properly, unlike the definition that is in the Bill — and I compliment the Labour Party for noticing the breadth of that definition.

There is a huge category of offences here. We are not talking about legislation which is clearly designed and used only for dealing with subversive crime. The Offences Against the State Act is used regularly. Remember, the Offences Against the State Act can be used to arrest people and detain them for 48 hours for malicious damage to property, because malicious damage to property is a scheduled offence under the schedule of offences listed in the Offences Against the State Act. It is a magnificent, sweeping catch-all way of arresting people, because virtually any crime against property can be interpreted as involving malicious damage against property and, therefore, people can be detained for 48 hours. The courts have accepted that. If the Government want to say that people can be sentenced to a minimum of 40 years imprisonment for a huge range of murders — and murder is an appalling offence — then fair enough, but let us not pretend and get involved in this thing which says that the courts will not do this, the courts will not do that and the courts will not do the other. The Minister is no more infallible than I am. The Minister is perhaps better advised than I am, but he is no more infallible than I am.

The best thing to do would be to follow the logic of the Labour Party. We are not exactly letting people off lightly. We are still talking about life imprisonment. Life imprisonment in this country means, in law, life imprisonment until somebody decides otherwise. It does not mean seven years or ten years; it means until somebody agrees it is better to release the person. It is not a defined term. When the person is sentenced to life imprisonment, they are sentenced to imprisonment for the rest of their natural lives. The Government then, as a matter of general policy, with some exceptions, decide after a period of time that these people have served a sufficient sentence and are released. But life is life. We really are involved here, in these 40 years sentences, in a gesture of symbolism and of disapproval meant to satisfy certain lobbies in the State.

On the issue of treason, I would be grateful if the Minister could give me a definition of citizenship at some stage, because treason is an offence that can be committed by a citizen. Is a person born in Northern Ireland a citizen of this State? In the case of a person born in Northern Ireland, with the possibility of an armed conflict between a member of the UDR and a member of our armed forces, then that person is guilty of treason and is liable to 40 years in prison.

Let us go through the definition of "treason" as defined in the Constitution and as quoted in the Treason Act, 1939. It sounds fine and specific at the beginning.

Treason shall consist only in levying war against the State or assisting any state or person in inciting or in conspiring with any person to levy war against the State or attempting by force, or arms or other violent means to overthrow the organs of Government established by the Constitution...

That does not mean killing anybody. It simply means attempting by force of arms — an offence I do not support or an activity I do not support, none of us supports — but it does not involve killing anybody. It simply means attempting by violent means to overthrow the organs of government established by the constitution "or taking part or being concerned in or inciting or conspiring with any person to make, take part or be concerned in any such attempt".

It is not just somebody who actually takes arms and fights against the State. It is anybody who takes part or is concerned in or incites or conspires with any person to take part — somebody who incites somebody else to take part in any such attempt.

Incitement is a particularly risky business because it is a matter of considerable flexibility of interpretation. What we have been told in this Act is that that sort of offence, which I am not suggesting is proper activity, is of similar gravity with the deliberate, knowing murder of a member of the Garda Síochána. That is ridiculous. It is an offence for which I think people should be punished. I also think — may I say, at the risk of having myself metaphorically at least hanged — that the concept of treason is one that needs to be re-examined fundamentally. It has a certain echo of another era. The offence could be defined without this word "treason" associated with it. I can see no logic in saying that because treason used to be a capital offence and was retained in 1964, it must say as a similar offence under the new legislation.

I do not know why life imprisonment without the further addition of horrendous penalties is not sufficient for somebody who is found guilty of treason, bearing in mind that it does not involve, necessarily or implicitly anybody being killed or indeed anybody being hurt. It does not involve doing anything; it simply involves conspiring to doing it. We have given lectures to a neighbouring jurisdiction about the dangers of offences which involve allegations of conspiracy. What we are saying is that somebody who is found guilty of conspiring to do what is defined in our Constitution as treason should actually serve a minimum of 40 years in prison. That is quite daft. It makes no logical sense. It make no sense that I can figure out and it is entirely disproportionate and entirely unrelated in gravity to the offence of murder of a member of the Garda Síochána. I have no idea why it was put in there other than that it was the simple way to do it, the sloppy way to do it, and it should be taken out.

First, I welcome the Minister of State. I want to make a couple of brief points. One relates to what Senator Ryan said about the definition of treason and the likelihood that somebody who incites or is involved indirectly in such a serious and grave offence against the State should be treated differently. I cannot agree that this should be the case. I should also make the point, in relation to his reference to treason possibly being a historic dimension, that in democratic states throughout the world the crime of treason is always available. If somebody is involved in the calculated importation, say, of a nuclear missile, and contrives this without killing anybody, that person cannot be categorised. The problem we have had in much of this legislation is that there are too many categories.

I would totally oppose the points made by other speakers in relation to making differential categories and reducing the term of 40 years to 20 years or less. Treason is a very serious offence. It has to be retained while the institutions of the State, or any democratic State, exist. The amendment should be opposed.

Some of the points being made and some of the amendments down here are of a time-consuming nature and are frivolous and vexatious. All parties, without exception, have agreed that his legislation is long overdue. There was a question as to why the Minister, Deputy Burke, is not here. If we were to wait until Deputy Burke could be here maybe this legislation would not get through in this session. The Minister of State is here and the matter is being dealt with. We must ensure that this piece of legislation is brought in as quickly as possible and that certain amendments put down, which are of a very technical nature and possibly frivolous, are not accepted. I totally oppose the amendments.

None of the amendments from the Labour Party is vexatious or frivolous and neither is any of the other amendments I have dealt with. It is our function in the Seanad to seek to improve legislation and that is the intention of these amendments. It is quite improper to suggest that there is any ulterior motive involved.

The purpose in putting down amendments Nos. 2 and 3 from the Labour Party was to point out the anomalies in the sections where the mandatory sentences apply. Indeed, in amendment No. 8 from Senator Ryan there is a connection there because that is also pointing out an anomoly in relation to the parameters of this new legislation, that is the mandatory sentence in relation to certain offences. It would be much cleaner and more appropriate legislation if the two areas were specified at section 3:1; (a) and (b), that is, the murder of a member of the Garda Síochána or of a prison officer. Once one goes beyond that one is moving into areas that are illdefined and are illogical. That is what we are trying to point out in paragraphs (c) and (d), and indeed in relation to amendment No. 8.

I remember going through the old debates in 1964 when the present Taoiseach introduced the Criminal Justice Bill. When the Bill had been debated he stated that if he had thought there would have been such goodwill in relation to the Bill he would have gone further. It would be a shame if at this time when we have at last abolished the death penalty for all offences, we were not precise and clear as to what we are putting in its place. Those are the two anomolies I was pointing out. The first is in relation to the Offences Against the State Act, an emergency piece of legislation brought in on a temporary basis and not intended to be permanent. That means that it is illequipped to deal with this section and is the reason I consider it unsatisfactory. Indeed, the Minister has indicated that in relation to unlawful organisations there is a very broad definition and it could be seen as extending even to gangs of robbers or burglars whose crime is not an offence against the State as we understand it.

The Offences Against the State Act is a catch-all. It is a type of legislation that covers a multitude and has been allowed to cover a multitude both in terms of the scheduled offences, the unscheduled offences and now the courts of the land have begun to accept it as not being emergency legislation but as ordinary law. It is quite unsuitable in relation to this legislation. The definitions are far too wide.

In relation to my second amendment, the Minister has not replied to my major point and that is that there is an illogical situation where a specific type of protection is given to diplomats or to representatives of a Government outside the State, but there is no such protection given to representatives of our own Government within the State. Why have this illogical situation? I am not saying it is not a serious offence. Of course it is, but a mandatory sentence of 40 years would not apply if a Member of this or the other House happens to be killed by a subversive organisation in the morning whereas it would be if it was a member of a foreign Government, a diplomat, a third secretary, or any person who has diplomatic ranking. That is a major anomoly and it has not been addressed in the legislation. The cleanest thing is either to address it specifically and add another section or else delete it and leave it out entirely, as I am proposing.

I would make one or two other points. What is the situation in the case of the murder of an illegal Head of State, someone who has taken power by illegal means? What about the Ceausescues of this world? What about a situation where the person is a Head of Government in violation of international law? My prime consideration is that there is an essential anomaly there that has not been addressed in relation to giving a particular type of protection to representatives of the Government of a foreign State and the same protection is not given to representatives of the Government of this State. The clear example we have in our history is where the British Ambassador was assassinated in 1976 and if his murderers were found they would be subject to the capital death penalty whereas the murderers of a member of Fine Gael in this House, Senator Fox, were not subjected to the same penalty because Senator Fox was a Member of our own Parliament. If we cannot address it properly we will coming back again in the years to come so why not address it now? Get it out of the way and get it dealt with. I am not saying that these are not serious offences but we must deal with them logically and rationally.

It is unhelpful for Senator O'Donovan to make allegations that these amendments are of a frivolous nature. It is contentious and frankly absurd. Section 1 would be quite adequate in any consequent amendments to legislation and the rest would not be necessary to be included. It is the Government who put in the rest of these. Perhaps Senator O'Donovan does not agree with us but maybe he would concede we have some right to try to make improvements to legislation which is introduced by the Government. It is something which I think should be resented and will be resented from these benches if a member of the Government who are putting this Bill through states he feels amendments are frivolous and time consuming. They may be time consuming, and they probably are time consuming, but that should not be a major consideration in our objective in improving this Bill. The only people who are suddenly in a terrible hurry to pass this Bill are the Government. We have been asking the Government to put this Bill through for nearly ten years and suddenly Senator O'Donovan says they are in an awful hurry to push it through and we are wasting time.

He did not say that.

Indeed he did. He said exactly that. We are just trying to improve legislation which we have been pushing for ten years.

I would like to support my colleagues in saying I am sorry the Minister is again not here. This Bill has become a sort of game of "spot which Minister" we are going to get every week. I do not want to reflect badly on the Minister of State, Deputy Treacy, or the Minister, Deputy Smith, but we have already had three Ministers on this Bill in two days which I think is a pity. If Deputy Burke cannot manage it, he should appoint a Minister of State, or the Government should do so, in both his Departments. It is quite absurd that he should have two major portfolios and have to send Ministers here, there and everywhere to deal with matters not relevant to their Department. It is no reflection on the Minister present or the last one. We are going to have this continuous problem where Deputy Burke is trying to be in two places at one time. If he had a junior Minister, he would be able to come in here and the appropriate Minister would take this Bill, or the appropriate Minister would take the Broadcasting Bill in the other House. It is an insult to this House that we are consistently being sent Ministers to whose portfolio and brief the legislation does not apply. Having said that, I respect greatly the Minister, Deputy Treacy. I am sure he will take this Bill through as adequately as anybody in his position could possibly do.

I would like to ask the Minister one or two questions about treason. Having heard Senator Ryan's definition of treason from the Constitution. I do not quite understand why treason is on the Statute Book at all. It is something which puzzles me. Where is treason not covered by other crimes which are on the Statute Book. It seems to me that the offence of treason always consists of certain specific offences which are covered by other statutes which will effectively convict people of crimes and sentence them accordingly. It seems to me that treason, like the Offences Against the State Act, is a sort of catch-all and that really we should be able to define these sort of offences far more specifically. If we cannot, we should look for ways of doing it. In what area is treason not covered by criminal law somewhere else? I would also like to ask the Minister when the last treason case was heard in this State and what happened. When did we condemn anybody for treason and what were the circumstances? Thirdly, I want to know whether members of the IRA — because presumably they are permanently levying war against the State — are ipso facto guilty of treason by virtue of being members of the IRA.

I have made my views known on the amendments, we do not support them but I would like to defend the rights of the people who put those motions on the agenda. To say that such amendments — and they have been accepted as being in order — are frivolous and vexatious is very unfair. If they are not in order we will be told so by the Chair. If they are in order my colleagues have a right to put them down. To describe them as frivolous and vexatious is very unfair. I defend their right even though I may not agree with them.

It is a matter of opinion.

I will not be tedious in the matter but I think by now Senator O'Donovan has probably got the message that it would be very much resented if the privilege, right and duty of this House to amend legislation were in some way to be curtailed because Senator O'Donovan or anybody else on the Government benches thinks that they are frivolous or trivial, which were two of the three words used and the third is more interesting because it was "technical". I take the point made by Senator Ross that, in fact, it is one of the principal functions and justifications of this House that we refine legislation and bring whatever technical know-how we have to bear on legislation. I am sure it was just a slip in the footwork; I do not imagine it was meant maliciously. Perhaps the strength of feeling that has been voiced from this side will guard against a further slip of this kind in the future.

I would like to go back over something I mentioned. There was no reply to it. I have raised this matter on several occasions before, that is, the question of serious offences, such as treason and murder with a political motivation and so on. I did wonder aloud, as I have wondered in the past in discussing these matters, whether there is a constitutional bar to the removal of citizenship for these offences. It seems to me to be a useful avenue to explore. Maybe it is not legally possible but I would like to know if it is. Rather than hanging people, torturing them, sentencing them to 40 years, which is a form of cruel and unusual punishment, in my opinion, the removal of citizenship would strike right at the very heart where these people really would feel the punishment that was being invoked upon them. It seems to me that this idea is very close to what Senator McDonald was talking about when he instanced Greenland and sending people to Coventry. I cannot think of any better or more effective way of sending people to Coventry then removing their citizenship, saying "You purport to act in our name illegitimately, you are causing offence and shame to us and we deny you the right to describe yourselves as part of our community". It may be, of course, that this is an absurd idea; it may be that it is quite impossible but I would like — and I am flying a kite to a certain extent — to know whether this is possible.

I would like to move on now to some other matters in relation to these amendments. I think Senator Brendan Ryan has done an extremely useful job for us here in opening up a discussion on these amendments because he has demonstrated that because of the operation of the Offences Against the State Act there will be a large number of incidental cases in which this mandatory 40 year sentence will come into play and there may very well not be a clear intention on the part of the Government for that mandatory sentence to come into play. If it is then it raises even further problems, problems that were in fact addressed by several speakers on the Second Stage of the Bill. It means that you are beginning to categorise offences of murder, you are beginning to rank them, you are beginning to say: "This kind of murder is much worse". Perhaps there is a clear difference in murder with a political motive, perhaps that argument can be raised although again you could be on sticky ground but is murder committed within the State for a political motive worse than murder committed without a political motive, with the intention of sadism for example, or just for the hell of it? Is that worse? I do not know. I think that argument has to be made.

The central argument of Senator Ryan — as I understood it and I am sure he will correct me if I am incorrect — is that apparently because of the operation of the Offences Against the State Act a considerable number of incidental situations will arise in which a mandatory 40 year sentence which may very well not be deemed to be appropriate will apply. For example, I remember a couple of years ago where people armed themselves with hurley sticks and iron bars and so on and set off towards the British Embassy. They were stopped by the police and there was a baton charge. It is possible that a guard could have been killed in that situation, and a very horrible offence that would have been but is it worse than the rape and murder of a four year old girl, the battering to death of an 85 year old woman? If it is, why is it different? Why is it worse?

I would like to make one final point on this issue. Again I would not exactly say it was flying a kite but it is putting these situations in a certain context. I was a little bit worried as I listened to the Minister describing the ramifications of the Offences Against the State Act and what constituted in his opinion, or in the opinion of his advisers, illegal organisations, subversive groups and so on. One of the definitions he gave stuck in my mind for particular reasons, that was, people who have banded together to advocate the commission of crime or illegal activities. I say this because, for a number of years, I have been urging that the Government should alter the 1861 and 1885 Acts which render completely illegal any form of sexual activity between consenting male adults in private. I would remind the Minister that until the 1861 Act this was itself a capital offence and remains a felony.

I would also draw to the Minister's attention the fact that a complaint under the Broadcasting Act against myself and RTE was actually upheld some years ago on the basis that simply by talking about this subject I was advocating the commission of crime. What happens there? In other words, the Offences Against the Person Act is a very wide net and, as Senator Ryan has said, has been instituted by recent decisions of the Supreme Court as part of the ordinary everyday law of the land. That reinforces the argument that has been made that a very considerable number of incidental cases may very well be triggered by this legislation which commands a mandatory life sentence.

In a way, I experience a grim amusement from the inclusion of the political motivation element in this Bill because it certainly seems to clash with some decisions of the Supreme Court where, on the one hand, in this State we seem to take the view that a political motivation exonerates and, on the other, we think it makes the crime worse. Is there not a requirement that we should have some clarification here of our attitude?

What the Minister has told us about treason is that since that is the way it was in 1964 when we abolished the death penalty, that is the way it should be now. I do not want to get cross or anything, but that is not an argument. I would like to know why treason must be included — treason, as it is defined, with all its implications with all the possibilities of interpretation, and these extraordinary sections of the Offences Against the State Act? The Minister seems to have this lovely, benevolent view of the way the courts should deal with the Offences Against the State Act. I know a man who is in jail, serving three or five years because he had the misfortune to have in his possession — he probably should not have had — a large number of posters which supported the IRA. That was taken as evidence that he was a member of the IRA and he got five years in jail for it. I do not have a lot of sympathy with the individual or his activities, but the courts are not inclined to take a benevolent view of the application of the Offences Against the State Act. Quite the opposite. They are inclined to take an excessively — in my view — serious view of how it should be implemented. Can the Minister tell me not that it was there in 1964 but the thinking of the Government why treason, in all the various ways it is defined, should be an offence as serious as that of going out and deliberately killing a member of the Garda Síochána in uniform?

In reply to Senator O'Donovan, I have never put down a frivolous amendment in my life. I have got an awful lot of frivolous replies from Government Ministers to amendments I have put down, may I say, ranging from the offensive to the downright ludicrous, but I have never put down a frivolous amendment. What is delaying this Bill unnecessarily is that from section 2 on it is unnecessary. All this Bill needed was section 1, together with a section which said that everwhere the penalty is prescribed that shall be taken to mean life imprisonment. That would be sufficient to do the job. The rest of this Bill is a contortion of logic in an attempt to satisfy a variety of lobbies about what we are doing. Life imprisonment is life imprisonment. It is long enough, bad enough and hard enough.

I did not, nor did any of us on this side of the House, invent the rest of this Bill. It was invented not for reasons to do with the law or the enforcement of the law but for political reasons to keep certain lobbies happy. There is no need for anything more than two sections in this Bill and if we only had two sections I for one would have tabled no amendments and we would have this Bill through in half an hour.

I have listened again to the various contributions with great interest. In response to Senator Ryan, whether a Minister's reply is frivolous is a matter of opinion. Likewise, everybody is entitled to think that their attitude is correct. Eventually we find a consensus and we agree what we hope is in everybody's best interests. We are not changing the law in relation to capital offences. Capital murder is clearly defined in the Bill and nothing new is being done, other than abolishing the death penalty and replacing it with a 40 year minimum mandatory penalty.

Section 30 of the Offences Against the State Act is an arrest and detention provision; it is not referred to in this Bill and is not relevant to this Bill. No organisation other than a subversive organisation has ever been proceeded against, and under the provisions of the Offences Against the State Act, 1939, this is clearly the situation: it is 50 years since the Act first came into law. The courts have been absolutely consistent on this matter.

Senator Ryan referred to the definition of "citizenship" in the context of the offence of treason. There is no difficulty with citizenship in this context because treason can be committed by anybody, whether they are a citizen or not. Consequently, they can be prosecuted for same. Senator Ryan asked why we still include treason and I explained at the very outset — I thought very clearly — why the Government in 1964 included treason as a capital offence. As far as this Government are concerned, these reasons are still valid, even though Senator Ryan may choose not to accept them.

Senator Ross asked where treason is not covered by other crimes already on the Statute Book. Treason is defined in the Constitution. It is not merely a statutory offence; it is a constitutional offence. Consequently, it is one of the most serious offences in the State. He asked when was the last treason case and what happened. As far as I know, in modern times, there has been no prosecutions for treason.

What is the point of threatening——

We have no secrets to sell.

——to put people in jail for 40 years for an offence that nobody has ever been tried for?

I do not see any threat to put anybody in jail. Nobody is put in jail unless they break the law. We are all under threat if that is the case. I do not accept that there is a threat there: it is a security within the law, it is a protection of the State and I cannot see that as a threat. It means that anybody who accepts the law is free to do what they should within the law, but it is not a threat to say that we have laws. There are laws in every country and we must all accept the law of the land. I do not see it as a threat.

Senator Ross also asked whether members of the IRA are liable to be prosecuted for treason. We still have subversive organisations in our country and if the Director of Public Prosecutions decided to do so, yes, they could be prosecuted for treason.

I regret if, by responding to Senator Ryan's amendment No. 8, I caused any inconvenience. I presumed, from what the Cathaoirleach said, that we were taking amendments Nos. 2, 3 and 8 together. When he called on me to respond I felt obliged to respond to all three together.

I find the Minister's reply astonishing and unsatisfactory. There is again a contradiction. First, he has given us the very interesting information that no one has ever been prosecuted for treason, which seems a rather poor argument for incorporating it in this legislation, and he then goes on to say, yes, members of the IRA could be prosecuted for treason if the Director of Public Prosecutions so decided. I would like to know why he does not?

I cannot answer for the Director of Public Prosecutions. I have confidence in the man.

Perhaps the Government would urge this course of action in the light of what the Minister had to say because there are acts of treason being carried out against this country. One was carried out on the night of the Irish football victory where football hooligan equivalents, in political terms, blew up a club in London and would not even allow us that unblemished moment of triumph — the spoiler's art revealed to the Irish public once again. I am very interested that the Minister says that membership of the IRA is an act of treason. I am very glad the record of this House will so show and I would like to know when they will prosecute them for treason. It does not mean that they should be put in jail for 40 years.

One question that was not answered — perhaps it was so frivolous, technical or trivial that it did not require an answer but I made it in good faith, in my ignorance and folly — it was whether there was any constitutional or legal bar to the removal of citizenship from people for the offence of treason, instead of shoving them into jail for 40 years. Senator McDonald made an excellent point when he spoke about Greenland sending people to Coventry. I would be very happy if members of the IRA were prosecuted for treason and, as a consequence, had their citizenship removed.

We should get on with the legislation but we have not had satisfactory replies from the Minister. I did not get any response to my argument as to why 3 (1) (d) should be not deleted because of the anomaly that it creates. In relation to Senator Ryan's amendment the Minister's replies have been totally inadequate. He has not given any justification for the retention of special mandatory sentences in relation to acts of treason. The fact that no prosecutions have taken place in the history of the State is sufficient reason why this matter should not be dealt with in this legislation. We should have laws that are pragmatic and deal with real offences, not imaginary or hypothetical offences. This legislation is not really eliminating the offence of capital punishment in relation to murder. It is trying to retain all the baggage that was in the 1964 legislation. It has done that simply because people did not get around to thinking about it properly. If we are talking about special mandatory sentences being imposed, it would be in the context of a life for a life. What we have thrown in are sections in relation to the institutions of the State, to treason and to emergency legislation.

If we are to update this legislation properly we should do so clearly and cleanly. Special mandatory punishment should simply apply to the murder of a member of the Garda Síochána and prison officers. In his introductory remarks, the Minister, Deputy Burke, said that this legislation was being updated because existing penalties were not being used, that there have not been any executions since 1954 and it was improper to have legislation on the Statute Book carrying a type of punishment that was not being used. Why retain on the Statute Book the punishment for the offence of treason when it has not been used? I ask the Minister to reply to amendment No. 3 and to consider deleting the three sections that are the subject matter of the three amendments.

I thank the Minister of State for answering several of my questions. He has opened up the possibility of several more. His first and most interesting reply was that the IRA could be prosecuted for treason by virtue of membership. I have mixed feelings about it because the crime of treason should be abolished per se. If members of the IRA can be prosecuted for treason by virtue of membership, why is the maximum sentence for membership of the IRA five years? We have a situation whereby people can be prosecuted for membership of the IRA per se and be given up to five years in prison as a maximum sentence but they can also be prosecuted for treason and be given 40 years according to this Bill. There is an anomaly here and perhaps the Minister can throw some light on it.

I asked the Minister if he could give us an example of where a treasonable offence was not covered by the normal criminal law and he replied by saying it was a crime according to the Constitution. That does not answer my question. I accept it is a constitutional crime but I asked for an example of where the crime of treason was not covered by the normal criminal law. The whole concept of treason is quite ridiculous. The third question I asked was when was the last case of treason and the answer was that there had not been one. I knew the answer to that question before I asked it.

I thought so.

It was important in making the case for its abolition to point out that it was redundant and that all cases of possible treason were covered by offences elsewhere. I would like the Minister to answer the question on the IRA and to illustrate how somebody could be prosecuted for treason as a separate crime from other crimes under the criminal law.

I regret if I have not answered all the questions during the course of my reply. Senator Costello made the point that section 3 (1) (d) should be removed in view of the fact that it does not cover members of the Government or the Oireachtas. The reason they are not included is that it is inherent in the Bill and also because we have confidence in the institutions of the State and in the courts to make a judgment in relation to any offence that is committed against any person. The very tragic death of Ambassador Ewart Biggs is proof positive of the need to have this section in the Bill. We must clearly display the right of any Head of State, member of Government or ambassador from any part of the world to visit our country as a modern, open democracy and we must enshrine in law the necessary safeguards to protect them while they are here. That is very important.

Senators Ross and Ryan talked about treason. Treason is a morally reprehensible offence and every State reserves the right to prosecute for such an offence. Ordinary criminal provisions are not enough.

Nelson Mandela spent 27 years in jail for treason.

Thank God, he is coming to an open democracy and will be addressing the Dáil on Monday. I hope the Senator will be there to hear him.

Are we invited?

You are.

All Members of the Oireachtas, as far as I am aware, are entitled to attend. Senator Ross spoke about membership of the IRA and why there is a penalty of five years in jail if one is a member of the IRA. That is not relevant in the context of this Bill. We are taking this Bill in the context of capital offences which are there in law and we are changing the law in reference to that. Membership of illegal organisations and the penalties involved are not covered by this Bill. That is additional to the Bill and it is something we should not be drawn on.

The Minister furnished ample evidence to support the amendment in the original part of what he said. I was very interested to hear him support the amendment so vigorously. The Minister was quite fulsome in his compliments to the courts and in their capacity to deal with the murder of mere mortals like myself, Senator Ross and indeed himself. I wonder why he does not trust them to deal with the case of ambassadors and why, if the courts are capable of dealing in this way with certain kinds of murder, do they suddenly become frivolous, trivial or technical, to quote Senator O'Donovan, in dealing with the murder of ambassadors?

I would like also to return to the attack because there seems to be an astonishing silence — I do not know how I could have provoked such silence — on the question of the IRA. I found it fascinating that the Minister said they could be prosecuted for treason but we were not prosecuting them for treason. I asked a technical question: was there a constitutional or legal bar to the removal of citizenship for persons found guilty of the treasonous offence of membership of the IRA or the committing of particularly horrible offences. For my own satisfaction and to add a further sling to my pouch, I would be glad if the Minister would answer that question.

Section 18 of the Offences Against the State Act states:

In order to regulate and control in the public interest the exercise of the constitutional right of citizens to form associations, it is hereby declared that any organisation which—

(a) engages in, promotes, encourages or advocates the commission of treason or any activity of a treasonable nature, or

That is the definition of an unlawful organisation — one that engages in treason. Apparently nobody has ever been charged with treason. What we have here is that somebody threw together a shopping list of what are regarded as particularly heinous offences that people would be upset about. Murder is awful. It is right that anybody who commits murder should be sentenced to life imprisonment. It is absolutely daft to try to pick out different kinds of murder and make different provisions for them. There is no logical, rational justification for the distinctions being inserted into this legislation. The simple thing is to say that anybody who commits murder or treason should be sentenced to life imprisonment. After that it is up to the normal procedures of judicial review or of ministerial review or proper parole, if we had one, to deal with the length of that sentence in the light of all of the considerations. This legislation with all the attempted pretence at niceties and distinctions is all nonsense. That is what has emerged after the past hour of discussion.

Exactly. Hear, hear.

What amazes me about the attitude of my colleagues on the other side of the House is——

You should never be amazed by us.

God knows I should not be but I try to give you a bit of credit for common sense. I come in here and I listen to an hour of carry-on again.

It is the hour that is the problem.

If we had brought in this Bill with only sections 1 and 2 in it nobody would be more vocal than the Senators who are here this afternoon.


Will you please stop interrupting until I have concluded?

The Senator is not in the Chair now.

I will be in the Chair again: do not worry about that. Nobody more than Senators Ross and Brendan Ryan and the newcomer, Senator Norris, would ask us as a Government to have this Bill with explanations written in. What has shaken me, with the greatest respect to some of the Senators, is how lightly they regard treachery——

You know all about treachery in that party.

Senator Norris has made a statement about my party and I ask the Chair to ask him to withdraw it.

It is a political charge.

Acting Chairman

Senator Honan, without interruption.

I was saying before I was so rudely interrupted by Senator Norris how lightly they are taking the awful crime of treason. I am amazed that some of my colleagues do not think treason is as serious an offence as it is. We are dealing with this Bill this afternoon and I do not mind if I am here until 4 o'clock tomorrow morning. Nobody knows better than my colleague, Senator Ross, that he kept me here previously until 4 o'clock one morning. I am prepared to sit here again until 4 o'clock in the morning and I will wear him out again. This Bill is necessary. Would Senators opposite have accepted just one line of a Bill?


That is precisely what we are saying. Sections 1 and 2 are excellent. The remaining sections have been thrown together in a higgledy-piggledy fashion. They are ill-thought out and badly presented. We are trying to improve the legislation. We are not taking lightly the awful crime of treason but we are pointing out that this awful crime of treason has never been prosecuted in the history of the State. We are saying that legislation should deal with the real world and with real issues. The Minister said one of the reasons he was introducing this legislation to abolish the death penalty was because the punishment was not being used and that legislation which had been allowed to fall into disuse should not remain on the Statute Book. Therefore, offences which have not been prosecuted by this State should fall into disuse in relation to the special mandatory imprisonment of 40 years.

The wording of the reference in the Offences Against the State Act to the act of treason is very broad and vague in what it can actually cover. It does not look as if the Minister will be very receptive and part of the problem is that the Minister for Justice is not here. I do not believe the Minister present has authority to accept amendments and that is why we are being stonewalled. The response he gave to amendment No. 3 reinforced everything I had said. He said that it was inherent in the Bill. It is not and the example he gave of the British Ambassador and the example I gave of the Senator from this House is proof positive that it is not inherent in the legislation.

In the three amendments we point out the anomalies that are inherent in retaining these three sections and ask the Minister to delete them because they are not really part and parcel of this very desirable Bill to abolish the death penalty. That is the problem. They are against the spirit of the Bill and in practical, legislative and technical terms they are ill-constituted and ill-presented. Finally, we strongly urge the Minister to consider and accept the three amendments. There is the same underlying principle in each of the amendments and we ask the Minister to accept them.

Has the Minister either the capacity or the intention to accept any of these amendments because if the answer to either or both of those is no, then perhaps we will have to proceed with the Bill. I understand his discomfort. It is a difficult position to be in. May I, in a spirit of compassion, wish him a speedy return to health.

In response to Senator Norris's earlier point which I regret I did not answer, he asked if a person convicted of treason could be deprived of Irish citizenship. This is not possible under the law. You cannot take citizenship away from a person once it is conferred on him under Irish law.

To go back to Senator Costello's point, we must understand we are talking about the serious offence of murder, the termination of somebody's life. We have clearly clarified the situation pertaining to capital murder. We have an onus as legislators to protect those who put themselves in the front line protecting people and property and discharging their duty on behalf of the State at a very high personal risk. There has been a lot of talk about why a case has not been taken in regard to treason. There is a fairly conclusive reason to leave it there. It acts as a deterrent and it is a matter for the Director of Public Prosecutions to decide, under any particular Act, what is a crime and prosecute accordingly.

He has not prosecuted anybody.

He has not made any decision on that. This Act was passed in 1964. It is not just a shopping basket of offences as Senator Ryan said. It is the law of the land and we should accept it as such. This is a very important Bill. In a direct answer to Senator Norris, I have the capacity to accept amendments but I made it quite clear I will not be accepting the amendments that are being debated at the moment.

Amendment put and declared lost.

Acting Chairman

Amendment No. 3 has already been discussed.

I move amendment No. 3:

In page 3, line 25 to 27, to delete paragraph (d).

Amendment put and declared lost.

I move amendment No. 4:

In page 3, line 32, after "murder" to insert "and shall be called aggravated murder and attempted aggravated murder".

The amendment seeks to put a name on the offence. We do not have offences without names and it would be a simple matter to call it something of this nature. How will we refer to thse two offences? A relevant and proper wording would be to call it "aggravated murder" or "attempted aggravated murder" and that would be in line with the recent Rape Bill where "indecent assault" and "aggravated indecent assault" was used. I am enabling the Minister to put a name on the offence and it is appropriate that this should be done. This should be non-controversial and there is no reason why the Minister should not accept the amendment.

I support Senator Costello because if it is necessary to make a clear distinction surely that distinction should be reflected in the terminology.

I appreciate that the proposers of this amendment are attempting to introduce a term which they hope would distinguish the particular type of murder dealt with in section 3 from "ordinary" murder. However, the term "aggravated" is not appropriate in the context in which the Senator seeks to use it. This term has connotations of some extra element in an action which makes the action more serious or more reprehensible such as the use of violence in aggravated burglary. What is in question in the case of section 3 murders is the status of the victim, not the manner of the murder. The use of the term "aggravated" in that regard would not, therefore, be appropriate. Consequently, I must oppose this amendment.

It is not necessary for the Minister of State to take the exact wording here. If he feels there is something extra included or suggested within the wording, then the Minister should come up with a form of wording. The function of the Seanad is to improve legislation and where we have legislation that does not distinguish this particular offence from the offence of "ordinary" murder then we are being negligent in dealing with it. It is different. There is no doubt about that. Why will the Minister not follow what is normal procedure, that is, put appropriate terminology on the new offence that is being constituted.

I agree with the suggestion that there should be a distinction between "ordinary" murder and what was known up to now as capital murder. Maybe this is an opportunity for the Minister and the parliamentary draftsman to look at a proper term that will distinguish it. He could introduce an amendment on Report Stage. It would improve the legislation. I welcome the inclusion of the concept of recklessness which the Minister for Justice fought so hard on the Larceny Bill. It is nice now to see that he has accepted this approach in the context of this Bill. I urge the Minister to look at the suggestion of Senator Costello. It has a lot of merit and would improve the Bill.

The Minister spent a long time drawing the attention of the House to the fact that there were different kinds of murder and that there were additional elements in certain kinds of murder. There are two specific additional elements covered by section 3. One is, as the Minister states, the status of the people who are the victims of a murder but the other is the inclusion of an additional political motive. Both of these elements are additional ingredients in a murder and, consequently, could be said to aggravate a murder. To aggravate means to make it more serious, make it a more weighty matter. The Minister spent an hour arguing that those murders constitute a more weighty, a more serious form of murder because in addition to whatever gruesome manner the crime is carried out, there are additional factors and he listed those. At least, he listed one that I know of. I cannot understand why this descriptive term should not be added, which distinguishes a particular kind of murder.

The Minister spent a long time arguing that it is a different kind of murder because there are additional elements which make it more serious, a more grave offence. All are saying, and all Senator Costello is saying, as I understand him — he will correct me if I am wrong — is that we should recognise this additional gravity by calling it aggravated murder. I do not see any difficulty in that. I wonder if the Minister was, perhaps, being disingenuous when he said he had the capacity to accept amendments.

Acting Chairman

Is the amendment withdrawn?

What is the Minister's response? Has the Minister got a reply to the points?

Acting Chairman

The Minister has already responded.

I can respond again. The Minister for Justice is happy with the provision as it stands. Both himself and his excellent officials have given much time and attention to putting this Bill together. Up to now all these offences were known collectively as capital offences. However, treason is not murder and a new, all-inclusive term would be very difficult to find. Consequently, I do not propose to accept this amendment and I hope that my learned colleagues can accept that.

Amendment put and declared lost.

I move amendment No. 5:

In page 4, between lines 7 and 8, to insert the following paragraph:

"(c) Except in times of war, every offence to which this section relates, shall be tried by a jury.".

Like amendment No. 4, amendment No. 5 is also eminently reasonable as, indeed, are all of these amendments. None of them are vexatious or petty or anything of that nature. They are logical and that is the basis on which they are presented here.

The Senator would be lost if Senator O'Donovan did not make that comment earlier. The Senators opposite are acting like a bunch of school boys.

Acting Chairman

Could we have less interruptions please and get on with the business.

Certainly we have not had a lecture from Senator Honan and we are greateful for that.

The Senator has seen nothing yet.

Acting Chairman

Order, please.

We will let Senator Honan back in the Chair as Leas-Chathaoirleach.

I will be, anyway.

Amendment No. 5 states that except in times of war, every offence to which this section relates shall be tried by jury. We are looking for a jury trial in relation to each of those offences. There have been 11 capital murders committed here during the past two decades and I do not believe any of them have been tried by a jury. They have all been tried in non-jury courts. There is provision, of course, for military courts which were set up under the emergency legislation and the Offences Against the State Act. Therefore, all of those offences could be dealt with by non-jury courts or even by military courts.

If we are, as the Minister has indicated, introducing legislation which will put us among the civilised nations of the world in the way in which we deal with offenders, then we must abide by the civilised judicial system which is in existence and accepted internationally, that is a jury trial by peers. The citizens of the country are the people who should adjudicate, hear the case, and pronounce in relation to offences of a serious nature. This is an important and enlightened amendment and it should be introduced at this point.

The point that Senator Costello raised is of extreme importance. The Minister has the slightly innocent view that the courts can be relied upon not to allow the Offences Against the State Act to be used other than in a very limited fashion but the Offences Against the State Act has been used to set up the Special Criminal Court. It is worth while reading the section of the Act which provides for the setting up of the Special Criminal Court or the one which defines the Constitution. Section 39 of the 1939 Act states:

Every Special Criminal Court established under this Part of the Act shall consist of such an uneven number (not being less than three) of members as the Government shall from time to time determine, and different numbers of members may be so fixed in respect of different Special Criminal Courts.

(3) No person shall be appointed to be a member of the Special Criminal Court unless he is a judge of the High Court or the Circuit Court, or a justice of the District Court, or a barrister of not less than seven years standing, or of a solicitor of not less than seven years standing, or

and this is the one that is liable to make people extremely nervous

an officer of the Defence Forces not below the rank of commandant.

This legislation which the Minister believes will always be benevolent and in the interest of civil liberties could be interpreted by three Army officers. I am old enough to remember hearing on the radio news in the 1950s, when Fianna Fáil were in Government, about people being locked up virtually every day of the week for refusing to give an account of their movements. That is hardly a treasonable offence but it is an offence under the Offences Against the State Act. If we are proposing to lock people up for a minimum of 40 years, with the draconian extra provisions that are attached to later sections of this Bill, the least we can do is to ensure that the trial is heard in front of a jury.

One of the myths of the establishment parties here is that nobody is unhappy with the Special Criminal Court. I have heard prominent members of various large political parties say that. There are many people profoundly unhappy with the operation of the Special Criminal Court and that degree of unhappiness will be infinitely worse if some future, or indeed the present, Government decide that one way to improve the efficiency of the Special Criminal Court is to have it established and run entirely by Army officers. It is worth remembering that when a person is being tried they are not guilty of anything. That distinction seems to get lost when talking about a court. A person before a court is innocent and, therefore, one is not trying a murderer, but an innocent person who is guilty only when convicted. Therefore, the Minister is saying that the trial of an innocent person, which could result in him or her spending 40 years in prison, less a small amount of remission, could be carried out by three Army officers. That is not a mark of a civilised society and Senator Costello is right.

My party support the important element in our judicial system, the jury system. We support it and believe it should be used as often and as far as possible in our judicial system.

In relation to the amendment, how do we determine what, in present day circumstances, are times of war? Some people would argue that there is a war in the North of Ireland but we do not accept that. Because of the approach of subversives to the system at present, in extreme circumstances there could be intimidation of juries. We must protect the State and ensure that those who are guilty of criminal offences which were already mentioned and those who are guilty of what was previously called capital murder — now an offence without a name — are brought to justice where subversive organisations are in a position to take advantage of a critical situation, as has happened on some occasions in Northern Ireland. Under those circumstances, we cannot support this amendment. We would like to support it. Hopefully, it can be accepted when subversives, the IRA and their ilk, come to their senses and decide that the rule of democracy, rather than the rule of the gun, should be used.

I do not share Senator Neville's difficulty about the definition of when we are in a state of war. I believe — this could be just the amateur's view — that there is a legally definable state of war and this State is at war when it so declares in a legal fashion. I do not consider that we are in a state of war for a very good reason. I do not believe that the so-called Irish Republican Army, which is in fact no such thing, has the legal capacity to declare war. It may commit acts of aggression against the Irish people, and has consistently done so over the last 20 years, but it is not a state of war in legal terms. Perhaps the Minister and his advisers will clarify this point for us.

In the developing discussion on this Bill where the amendments sought by this side of the House have been faced down by the Government — and, of course, it is their right to do so — we are left in a situation where accused persons can now face severe penalties in relation to terms of imprisonment and Senator Ryan made the case that this might arise in the incidental operation of the Offences Against the State Act. There was no answer to that and, therefore, it is clear that it could happen. A good principle to follow is that when a citizen is threatened with increased jeopardy, there is a moral obligation to increase the safeguards. Senator Costello is right in indicating the one prime safeguard in our legal system, the existence of juries. The argument is very well made. Therefore, I support the amendment.

I will not attempt at this stage to say that the amendment is frivolous or vexatious. I made the point because that was my opinion on the amendments we were dealing with and, obviously many of the people on the other side disagree with me which they are entitled to do. I can see the rationale and reasoning behind this amendment, but I oppose it because of the point made by Senator Neville that unfortunately, whether we like it or not, certain crimes are committed which the ordinary, existing courts with judge and jury are not capable of dealing with. Normally it is a Garda or a prison officer who is murdered; these people are the first line of defence and the prime target for attack by subversive organisations, and so on.

I, too, would like to see the jury system available to all people. As a practising lawyer, I believe it is a basic right. Unfortunately recent history in this State has proved that certain crimes are carried out by very well equipped organisations — the IRA or other subversives — and in this instance the position appears to be that in the ordinary courts jurors would be reluctant to serve and would be intimidated. Unfortunately, these cases must be tried by the Special Criminal Court. In my experience and knowledge of the Special Criminal Court in the past two decades or so, nobody except a High Court judge, a Circuit Court judge, a District Court judge or a well qualified lawyer, has sat in it. That is the practical reality. It could be argued that I as a solicitor with ten years' experience I could sit on such a court; it is theoreticially possible but in reality it does not arise. I oppose this amendment.

It is unfortunate that the ordinary courts are not capable of dealing with those cases in a practical or other level. The question of intimidation of jurors is foremost in my mind. It exists and we must accept the legisaltion proposed by the Government.

I was in two minds about whether I should remain silent just to satisfy Senator Honan but I decided against. I oppose this amendment, disagree with the unanimity on these benches and join Senators Honan and O'Donovan.

I knew I could convince the Senator.

That was one of the reasons I was reluctant to move but I swallowed my prejudice, Senator.

That is what friends are for.

I fully understand why Senator Costello has moved this amendment. I am a fairly strong supporter of the Special Criminal Court, the reason it exists and the reasons it should continue. As Senator O'Donovan rightly said, it is everybody's ambition that all cases should be tried by jury in a perfect democracy and that everybody should stand before their peers but we are not in a position where that can happen.

The Special Criminal Court was introduced here in 1972, but I am open to correction on that. It has been in operation under successive Governments since that time including the Labour Party, when in Government, and every other party. It has functioned reasonably well and reasonably fairly. The reason it was set up was very simple, and other speakers touched on it. It was because convictions were not being gained against subversives when the Garda and others were obviously convinced that jurors were being intimidated. That is not a situation which any democracy can tolerate. We simply cannot say that the State is so generous that guilty people should go free because an organisation to which they belong can intimidate witnesses and jurors. That is the strongest argument for the retention of the Special Criminal Court. It is something I am reluctant to support because it offends many principles in which I believe but in practice it is inevitable that, if we are to gain convictions against subversives, the Special Criminal Court will continue to exist.

Secondly, I am doubtful whether any democracy can indulge in the privilege of giving this sort of luxury of justice to those who simply do not believe in it and do not give it out themselves. The IRA scream "foul" when they are brought before the Diplock Courts in Northern Ireland and before the Special Criminal Court here. Yet, they hold kangaroo courts; they murder people at will; they intimidate and bomb people and expect to get privileges from the State which they do not accord to others. I am doubtful whether it would be right to give them those privileges, but it is simply because of the proved intimidation of jurors that it is wrong to dilute the powers of the Special Criminal Court.

I would like to be associated with the remarks of our spokesperson, Senator Neville. It would be highly dangerous for us to have such trials held by jury because of the serious nature of the offences we are talking about and the likelihood that a jury would be interfered with. It is important that in this legislation we make it quite clear that when people are tried for the capital murder of a member of the Garda Síochána or a prison officer, they will not have the chance to intimidate jurors.

By and large, we have been very well served by the Special Criminal Court. The people who have served on this court have mainly been people of one party appointed by the other party and vice versa, and that is how it should be. They have proved that merit and ability come to the top. In the lower courts we sometimes do not see a uniformity of sentencing and we ask whether there should be some training for judges. As Senator O'Donovan said, a person with ten years in practice can suddenly be on the bench dealing with law he never dealt with in practice. Something should be done in relation to that.

Where war is declared on criminals and murderers we must have the Special Criminal Court and a jury is not appropriate in that case. We have seen all too often the cynicism of the IRA who can manipulate public opinion in various ways. It is important that in this legislation we give a clear commitment. While certain people have been gaining kudos over the abolition of hanging — which has not happened often over the past 34 or 36 years — our main consideration should be to give the maximum protection to the members of the Garda Síochána and prison officers. Trial by jury has the obvious possibility of threats to jurors or their families and this is a real threat. People charged are innocent until proven guilty but we are not talking about shoplifters and that should be remembered. I oppose this amendment.

I am concerned about a number of things, particularly the last remark about not dealing with shoplifters here. Are there now to be gradations of innocence which will presume shoplifters to be more innocent than people who are accused of murder? The presumption of innocence is absolute until it is reversed by a decision of the court. I am increasingly concerned at the picture that has been painted throughout the afternoon. I have heard that we are in a state of war. I have heard a considerable amount about politically inspired murders, about people who band themselves together for the purpose of subverting the State and now various people in the House are attempting to establish — perhaps they have reason to do so — that there is widespread intimidation of juries.

One of my colleagues asked for a definition of treason. I would suggest that if the State of Ireland is in a state of war, if there is a spate of politically inspired murders, if there are bands of people roaming the countryside with the intention of perpetrating such crimes, and if they subsequently conspire to pervert the institutions of this State, that is a very good definition of treason and if this is a description of the Provisional IRA so-called, then they are guilty of treason. That reinforces my question earlier, why then are they not prosecuted? One cannot have it both ways. If those conditions currently obtain here and if the condition of treason clearly exists throughout the countryside, why is it not being looked at in this manner?

Like Senator Norris, I listened with concern. I am not sure whether we are in a state of war or not because on reading Article 28 of the Constitution as far as I know we actually are under a state of emergency. It states:

...In this sub-section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State...

My understanding is that such a resolution has been passed by both Houses of the Oireachtas and, therefore, surprising as it may seem, we are in a time of war. That is something I learned after I had spoken. The argument is, in fact, about the crazy definition of a time of war. I know that whatever may be wrong with the country, I am not in a state of war and neither is the rest of the country in a state of war. Therefore, perhaps we should redefine our terms.

I will say something that is liable to get me into a lot of trouble. There are worse organisations in the country and worse people in the country than the Provisional IRA.


Those who have sold in an organised fashion for criminal gain——

Acting Chairman

I would remind Senator Ross that he should not interrupt from the public gallery.

——hard drugs to children and destroyed the lives of hundreds, if not thousands, of young people in this city have done as much damage to the fabric, to the well being and the welfare of society as any other group.


I am prepared to accept that those people are as capable, as ruthless and as willing to subvert, intimidate, or threaten a jury, or a member of a jury, as any subversive organisation. They are just as capable of doing so.

They do not have explosives.

Acting Chairman

Senator Ryan without interruption, please.

Maybe Senator Ross knows more about the resources available to drug pushers than I do but I have no reason to believe, on the record of international drug pushing, that drug pushers are lacking in weapons, ruthlessness or any equipment to kill people. You do not need Semtex explosives to intimidate a juror, there are a lot of ways to do it. These people, who have shown themselves to be entirely ruthless in the way they deal with and dispose of children, are prefectly capable of using the children of jurors. It is one of the extraordinary strengths of democracy that juries do not, by and large, give in to this intimidation.

One of the crazy things about this patronising paternalistic State of ours is that we do not actually believe our citizens are capable of ruling themselves. As far as I am aware, the number of cases where it can be demonstrated that a trial was subverted, because jurors were intimidated, could be written on one hand. It is on the basis of a Government opinion that it might happen that special criminal courts were set up. I have far more faith in the citizens of this country than perhaps the Government, Fianna Fáil or Fine Gael have. I do not believe our citizens will be intimidated not to do their duty as jurors. I do not believe it has happened in drug trials and I do not believe it would happen in the trials of people who are called subversives. I believe in the strength and the capacity of our people to defend what they like about this country.

I do not believe in picking out the Provisional IRA or any other organisation who use murder for political purposes and saying we must have special courts for them. There are other groups who do the same thing. I am appalled at the idea that a committed civil libertarian like Senator Ross would be so outrageous as to interrupt me from the public gallery and would then continue along this line.

We need jury trial. It is a bedrock of democracy. Countries like the United States of America, which have dealt with organised crime on a scale we could not dream of, and which have murder on a scale that, even at the height of the IRA activities, we would never dream of, have never suggested that they should go away from jury trials. I do not think we should either.

I wish that all our Independent colleagues would take this very important Bill seriously for a change. It is amazing to have to listen to people who do not think there is intimidation, who have never heard of knee-capping or the arbitrary kangaroo courts that seem to go on in parts of this country on a weekly basis. This is well known. There is no one in public life in this country who is not abreast of what is happening, what is being attempted, and the way some of these people, whether they are part of the Mafia dealing with drug pushing or on the fringe using the national question as a cover for their illegal activities, stoop to frustrate the law and the due process of law. We in this House have an obligation to ensure that the legislation we pass will be adequate to meet not only the present situation but what may happen in the future because it may be another 20 years before the House has an opportunity to look at this legislation again. It is not good enough that people come in here with this extraordinary innocence and are not aware that there are gangs in this country and there are no depths to which these people will not stoop. It is amazing to find people, who have very impressive credentials as legislators, should turn a blind eye to half of what is going on in the country.

I am getting increasingly concerned because I have now heard that there are kangaroo courts on a weekly basis throughout the country; we have a state of war which Senator Ryan has demonstrated — apparently it does have a legal foundation. That sounds rather alarming, I was not aware of it, I am surprised; however, perhaps he is correct — and subversive juries, I know there is a level at which these things exist, but if there really are kangaroo courts on a weekly basis throughout the countryside, then we are in a much worse situation. Senator McDonald is perfectly correct, I am an innocent.

We always knew that.

I was obviously unaware of the degree of civil unrest that exists in the country. I am alarmed and concerned. I have to say this: everything I have heard entered on that side of the argument remains at the level of opinion. I am not saying the opinion is ill-founded or is wrong, and for that reason I would like to direct a specific question at the Minister: would he be in a position to give to the House concrete information with regard to the number of cases in which a conviction has not been secured, or which has had to be withdrawn from the court, on the basis that there was physical intimidation of the witnesses?

Acting Chairman (Mr. Farrell)

Is the amendment withdrawn?

I would like an answer. When you ask questions you normally require answers.

I want to raise a number of points in relation to what has been said. This crime with no name, is certainly proving to be very difficult to deal with in the courts. Let me point out that the Special Criminal Court was not set up for the purpose of dealing with capital murder. That was not envisaged as part of its establishment; that is not the function of the Special Criminal Court. Quite a number of offences of capital murder have been dealt with that had no political connection whatsoever. I have pointed out that every offence has been dealt with by the Special Criminal Court; every offence of capital murder to date, irrespective of whether there was a political motive has been dealt with by these non-jury courts.

In the forties and fifties there were special military courts of three officers; we still have provision for this. If, as Senator Ryan said, we are in a state of war — we are certainly in a state of emergency — and if that is a state of war without an actual declaration of war, as seems to be suggested by the Constitution, then I have no problem withdrawing this amendment because it says "except in times of war". All these cases have been dealt with by special non-jury courts. I want to point out that since we talked about the whole business of intimidation of jurors in the early seventies we introduced majority decisions. You do not now need to have a unanimous decision; it can be 10:2 decision. With regard to the question of intimidation of juries, whatever the opinion people may have, steps have been taken juridically to deal with that possibility. As I said, there we have a majority decision. I am talking in terms of democracy. This is democracy dealing with offences in normal times. These offences, no matter how serious they are in a democratic and civilised society, should be dealt with by the ordinary democratic structures. Because the record states that they have not been dealt with by the normal democratic structures hitherto it is incumbent upon us to put in a caveat, a provision, to ensure that, since we are revamping, reorganising and reforming this legislation, we deal with that situation. The purpose of this amendment is to improve this legislation so that any person who is charged under it is adjudicated on by his peers.

The objective of sections of this Bill is to have a deterrent against what was previously known as capital murder, the murder of a garda or a member of the Prison Service, the group they come under most threat from are the IRA and their ilk. It is well known that part of the IRA's weaponry in their fight against what they call the war against this State — their ultimate aim is to bring down the institutions of this State — is intimidation.

Many of us know that people have been telephoned late at night and told: "we know where your children are going to school; we know where your sister is working; we know what time your wife leaves the house; we know you have made a certain statement about something and we would like you to change your views". I know people that was happened to. Intimidation is a part of the weaponry of the IRA. While everybody accepts that, as far as possible, decisions should be made under the jury system, that our peers should decide, in extreme cases, there can be the type of intimidation I have outlined and it is our duty to protect the State and our citizens against that.

It is possible to ring the spouse of, or a member of, the Special Criminal Court and make similar threats. Where is this presumption on the establishment that ordinary citizens, apparently, are less courageous, more easily intimidated than members of the Judiciary? On behalf of the ordinary citizenry, I resent that. It is the people who build our democracy, not the establishment, whether it be the judicial, political or otherwise. The strength of democracy is the strength of ordinary people's commitment to it. That is the fundamental bedrock of democracy and it works. No matter what people who feel superior think, it is the ordinary people's commitment to the freedoms that underpin democracy that keep democracy intact.

I cannot understand how all these people can be phoned and threatened when nobody knows, until the day of a court, who will be on the jury. We are confusing intimidation of witnesses with intimidation of a jury. Intimidation of witnesses can take place just as much in front of the Special Criminal Court as it can in front of a jury. I am not aware of any particular gift that judges in the Special Criminal Court have that enables them to divine evidence that is not presented by witnesses. The Special Criminal Court is bound by the same rules as a jury, which is to find that somebody is guilty beyond a reasonable doubt. They must do that on the basis of the evidence, not on the basis that they do not like the look of somebody, he is a member of the IRA or anything like that. They must do it on the basis of the evidence, the same way that a jury would do it. If witnesses are intimidated out of giving evidence and to not give evidence before the Special Criminal Court, the Special Criminal Court, in theory at least, is obliged to operate in the same way as a jury and find the person charged not guilty. They do not operate on a different law of evidence or a different level of evidence.

If the Members in front of me here are saying that the Special Criminal Court finds people guilty on lesser evidence than a jury, then we are even in a more serious situation than I thought because we actually have courts that are set up not to protect the citizen, but to convict him quicker on lesser evidence. Can somebody tell me how you can intimidate all of a jury when they are not picked until the day of a trial, or how you can protect witnesses simply by having the trial in front of three judges instead of in front of a jury?

In response to Senator Ryan, I have had a phone call from a subversive organisation and I will not be intimidated. When that goes public we see the effect it has on the family. They may be lesser beings than the general public — as Senator Ryan would say — but they certainly are intimidated and may put pressure on one to change one's views. One has to be strong and, if you are a public representative, you are obliged to be strong. If you are a member of the Judiciary, you too are obliged to be strong. Would this ordinary citizen, like any member of our families who might be affected, have the same strong will? In my view, it is very simple to intimidate a jury if the IRA want to do that. Another aspect of their weaponry is knee-capping. If they knee-cap three or four members of a jury who convicted somebody else, surely that is intimidation of the next jury, without ever knowing their names.

I wonder if, at times, Senator Ryan, who does a lot of good work on other fronts, lives in the real world when he talks about intimidation. Obviously the men of violence will not know the names of the jury until they have been selected, but if a trial is going on over a period, obviously the jury members will be known to these men of violence. Their intelligence system is every bit as good as is necessary to enable them to intimidate people. When there is an IRA funeral the word goes out to close shops and so on. We have to live in the real world.

We have seen members of the Garda Síochána and a former Member of this House killed by members of the IRA. While there is a great deal of talk about civil liberties, it is interesting to note that the person who committed that crime recently was released; but, unfortunately, that Senator is not alive today. It annoys me when there is all this talk about democratic systems and civil liberties and we know about gardaí in Roscommon, Meath and Dublin who have been killed. Looking at later amendments to the Bill, I wonder if we want to reduce even further the effect of this legislation? We are abolishing capital punishment. It was there for specific offences, but it appears now that we want to totally undermine the members of the Garda Síochána and the Prison Service.

I believe we have to live in the real world and not in some Utopia where we have marvellous jurors who are well able to stand up to any intimidation. I understand that members of the Special Criminal Court have the protection of armed guards. The jury system works well in other situations, but we are not dealing with a normal situation here.

I beg the indulgence of the Minister. Can he tell us the number of jurors who have been knee-capped?

We have had a wide ranging debate on this amendment, which is a direct and unwarranted contradiction of the whole system of Special Criminal Courts established by Part V of the Offences Against the State Act, 1939. Section 36 (1) of that Act provides, inter alia, for the trial by Special Criminal Courts of offences in relation to which the Government are satisfied that the ordinary courts are inadequate to secure the effective administration of justice.

Indeed, it is the activities of subversive organisations, largely the raison d'étre for Special Criminal Courts, which present one of the greatest threats to the lives of gardaí as experience has shown. It would be totally irrational, therefore, to provide, as this amendment would, that the murderer of a garda could not be tried in the Special Criminal Court. If one accepts the rationale for having such a court, particularly the danger of jury intimidation, then this may be the very case where such a court is most needed.

I would like to pay a special compliment to Senator Ross, who made a very warm and eloquent contribution against this amendment. Senator Norris asked for details where intimidation has taken place. I cannot give figures but there are situations where this has occurred. There is no doubt about this and our eminent colleagues have clearly verified it. Such cases could arise without anybody knowing that a juror has been got at — to use common parlance. The very fact that in serious crimes like this an ordinary member of the public is put in as a juror is human intimidation in itself. The fact that they are asked to adjudicate in a very high powered, legal structure, involving a very serious crime, must surely be human intimidation, never mind the personal intimidation, the serious situation that is created where there is subtle intimidation applied or, indeed, more serious intimidation.

Could I say to Senator Ryan that members of the Judiciary have permanent police protection. To provide this protection for jurors would be virtually impossible. I would like to remind the House that the Offences Against the State Act is directed against those who have no concern for civil liberties. If such people were allowed to usurp the powers of the State there would be very few civil liberties available. We must have the necessary laws to prevent this. Therefore, I am not in a position to accept this amendment.

Acting Chairman

Is the amendment withdrawn?

Amendment put and declared lost.

Acting Chairman

Amendments Nos. 6 and 7 are related and may be discussed together.

I do not see the connection between amendments Nos. 6 and 7 but if that is your ruling I will accept it. I move amendment No. 6:

In page 4, lines 12 and 13, to delete "section 7 of the Offences Against the State (Amendment) Act, 1940,".

The subsection refers to the Prisons Acts, 1826 to 1980, section 7 of the Offences Against the State (Amendment) Act, 1940, section 233 of the Defence Act, 1954 and section 2 of the Prisoners of War and Enemy Aliens Act, 1956. All of this legislation clearly deals with emergency type situations and section 7 of the Offences Against the State (Amendment) Act refers to internment camps. It is exclusively concerned with internment. While that section of legislation is dormant at present, it can be activated at any time.

We still have not got an answer from the Minister to the question: are we in a state of war? If we are in a state of war, all these amendments should be withdrawn and we better get cracking to see how we can save the country from all types of terrible things. Kneecapping is very minor in the context of a state of war. If we are not living in a state of war, or we are not in a State that considers itself in such circumstances, then we should not have provision for internment camps and we should have not have provision for internment. This is a very reasonable amendment to delete that section which should not be there in the first place. That should have been repealed ages ago.

Amendment No. 7 is a separate matter. I was surprised when I saw the definition of a "prison officer." We have no such definition of a Garda. The definition of a "prison officer" includes any member of the staff of a prison and any person having the custody of, or having duties in relation to the custody of, a person detained in a prison. That is an extremely wide definition of a prison officer, not a definition anybody would normally associate with a prison officer. Having duties in relation to the custody of a person detained in a prison is so wide that it can encompass everybody who has any function in relation to the administration, operation or any service provided within the prison context. That could extend to chaplains, who are paid by the Prison Service, the Department of Justice, visiting committees, members who visit the prisons on an ongoing basis, teachers who are seconded from the VECs, the probation service, or a cook in a kitchen in the prison.

I do not think that is the intention of the legislation in relation to what constituted capital murder previously. It should not be the intention of the legislation if the principle we have at present is to abolish capital murder except in the most serious offences where people are directly concerned with the security of the institutions of the State. That is an unnecessarily wide catch-all phrase that does not do justice to the excellent provisions in sections 1 and 2 of this legislation. The Minister should accept both amendments.

I would have thought the appropriate way to deal with internment and any threat to people who are operating internment camps, which is what section 7 of the Offences Against the State (Amendment) Act, 1940, deals with, would have been to introduce the necessary legislation if and when the Government deem it necessary to introduce internment, which I hope will be never. To introduce protection for people who may operate internment camps that currently do not exist seems to be giving a permanence to internment that nobody with any sort of commitment to civil liberties would accept, I have no problems about my commitment to civil liberties. I am not aware of any criminal who could be regarded as a champion of civil liberties. When people pick on one form of illegal activity and see it as a threat to civil liberties and not see the people who do appalling damage, assault and rape people, and reflect on the general level of civil liberties, there is a gut reaction which does not help rational analysis. I agree fully with Senator Costello. There should be no reference to internment camps in ordinary legislation. The Offences Against the State Act is draconian enough to meet any possible threat to the State. It is one of the most frightening pieces of legislation one could ever have the misfortune to have to go through.

I do not understand why we cannot have language used in its ordinary form in legislation. To me a prison officer is a person who is employed to run the prisons. Instead we have a definition introduced here which extends to anybody who has anything to do with the prison system "having duties in relation to the custody of." That, presumably, extends to those officials of the Department of Justice who have duties in relation to the administration of prisons. Perhaps it even extends to the Minister for Justice, who has duties "in relation to the custody of." We are in the ridiculous position where, if murder is committed and the Minister for Justice is killed, that is a different offence from the murder of the Taoiseach.

The attempt to define one form of murder as being different from another is ludicrous because people have said we must put in certain people as they are special areas of need. We are now in the ludicrous position where I think the only logical interpretation of the Bill is to say that if the Minister for Justice is murdered the person who murdered him will go to jail for 40 years and if the Taoiseach is murdered the person who murdered him will go to jail for life, which may be different. It does not make sense. It is not the objective on this side to make frivolous objections; it is simply to expose, in my view, the meaninglessness of trying to define different categories of murder.

It is the power of every Government this State has had to keep people who are sentenced to life imprisonment in prison for the rest of their lives. That is what life imprisonment means. There is no judicial interpretation, there is no law which says otherwise. If somebody is convicted of the murder of a garda at the age of 19 and he or she is sentenced to life imprisonment, that sentence could be a 51 year sentence if the person lives to be 70. That is the law of the land, and nobody has to release them.

I do not understand why a Government who are prepared to put legislation through which says people should serve 40 years somehow think some other Government will release them after ten years. It is all a meaningless sham to impress certain people.

Acting Chairman

That does not arise on the amendment.

It comes up in a variety of amendments.

Acting Chairman

It will be discussed on the appropriate amendments.

We were discussing these issues earlier, Sir. You have obviously decided to introduce a perhaps reasonable restriction on the debate. I will observe the Chair's ruling. Perhaps the Minister would explain if the definition of a prison officer includes the Minister for Justice and, if not, why not.

With regard to amendment No. 6, this is a very complex issue — the whole area of sanctions by the courts and any type of sanctions by the State. I and my party have called on numerous occasions for a full discussion and a different approach towards the whole area of sanctions by the court. This needs a comprehensive and detailed discussion before decisions are made. I would ask the Minister of State to urge the Minister for Justice to ensure that the custodial service does the work it was designed to do and that a debate is initiated, perhaps in this House, on the issue. We have proposals on the whole area which deserve consideration and, which complement — in fact, they are similar to a large extent — the Whitaker report. I would urge the Minister to consider this.

With regard to amendment No. 7 — the deletion of "having duties in relation to the custody of"— there are many people in our Prison Service who are not prison officers who have access to information about activities in the prison, about decisions that may have been made by the authorities in the prison.

An example of this might be a typist or secretary who would have information on plans, on decisions, that have been taken and on the situation inside the prison. Other people who were mentioned by my colleagues already would have access to similar information. These people must also be protected. They are open to much the same pressures and they are open to blackmail to release that information as are the prison officers. It is my view that these people should be protected in the Bill in a similar way to the prison officers.

I oppose the amendments and support what my colleague has said on this question. I would ask the Minister if this section extends to, for instance, the Inspector of Prisons and the senior civil servants whose duty it is to review prison sentences and who are in charge of the administration. It is easy to have identify these people. It is easy to have access to them. I would ask the Minister if these people enjoy that kind of protection. As ordinary civil servants they serve the State, but by virtue of the fact that they are transferred into this particular section, they are in a vulnerable position. I would like to think that they can go home at night with the maximum protection this Bill can give them.

I have listened with interest to the contributions made by various Senators. In particular I would like to refer to what Senators Costello and Ryan have said pertaining to internment and internment camps. Again, we are restating the law as it is under the 1964 Act. Section 7 of the Offences Against the State (Amendments) Act is referred to in that Act. Nothing new is being introduced.

I can also say that "prison officers" means staff working in the prison in the execution of their duties and refers to soldiers guarding the prisons and does not include, under any circumstances, the Minister for Justice.

Because he is a member of the Government.

Is he not a person who has duties in relation to the custody of persons——

I am not going to get into a debate on this issue across the floor of Seanad Éireann. It is obvious that the Minister for Justice is a member of the Government, is a politician elected by the people, and we are talking here specifically about the staff who are delegated to do a particular job. I also want to respond to Senator McDonald and say that it does not include the inspectorate or the administrative officers who would have to visit the prisons in the performance of their duties, in relation to their membership of the Department of Justice or in relation to the membership of any committees to which they would be appointed or in relation to any commissions or functions that would be given to any citizen in relation to prisons.

Section 7 of the Offences Against the State (Amendment) Act, 1940, confers power to make regulations for the management, etc., of places of detention provided under the Act for the detention of persons whose arrest and detention is ordered by a Minister under section 4 of the Act on the grounds that they are engaged in activities prejudicial to the preservation of public peace and order or to the security of the State. I would assume from these amendments that the Senators are not well disposed towards that provision. Be that as it may, this amendment will not alter the position, save that it would withdraw the protection of the 40 year penalty from soldiers who might be called upon to guard prisoners in a military detention centre. This would be quite wrong. It is one thing for the Senators to disagree with the provisions of the 1940 Act, that is their entitlement. However, that is no reason to lessen protection against the murder of a soldier. The deletion of the words "or having duties in relation to the custody of" from the definition of prison officer as proposed in amendment No. 7 would deprive soldiers guarding a place of military detention of the protection of this Bill. Of more immediate importance than that, it would deprive soldiers who carry out duties at Portlaoise Prison or who escort prisoners to the Special Criminal Court, for example, of such vital protection. This would be totally unacceptable and, consequently, I cannot accept these amendments.

I thank the Minister for his clarification. I still find the wording of the second amendment, "having duties in relation to the custody of", very unclear. If it is specifically inserted to protect soldiers who are from time to time in charge of prisons, then could we not have it specifically inserted in that context, or could it not be interpreted in the context of staff which comes before that, because "prison officer" includes any member of the staff of a prison? It could be any member of the staff who could from time to time be part of the security staff of the prison. The words "having duties in relation to the custody of" a person detained in a prison are extremely broad.

While the Minister may state that his intention is simply to cover soldiers, that is not what the legislation states. I would specifically refer to, say, a member of the visiting committee, who got very explicit duties in relation to discipline of prisoners and the custody of prisoners. They have functions to put prisoners in irons, to punish them. The visiting committee have, under instruments of the Visiting Committee Act, 1925, specific functions to place prisoners, in disciplinary terms, in irons. They can take remission from prisoners for periods of months, that is in relation to the custody of people in prison.

Looking at it as an ordinary man in the street, certainly I cannot see how this is restricted to soldiers who from time to time may be there. It is certainly far too broadly stated. Even if the Minister is not happy with the wording we have presented here, then he should tighten it up to state what it is intended to cover.

In regard to the other amendment concerning section 7 of the Offences Against the State Act, 1940, I do not think it is good enough for the Minister to say again and again that everything that is here was in the 1964 Act, that we are not adding to it. Of course, we are not. The intention of this legislation is to reform and improve and to get rid of sections of the 1964 Criminal Justice Act in relation to capital murder which were undesirable and to improve upon them. He says there is nothing new in this. That is the problem. We feel that there should be and that this type of situation should be dealt with. It is for all these reasons that we are unhappy the Minister has left so many sections of the 1964 Act, and has simply addressed parts and left other undigested sections still there that no doubt will have to be dealt with in the years to come. So, it would be a lot cleaner and healthier if this legislation did take on board these amendments. They would certainly be an improvement.

Acting Chairman

Is the amendment withdrawn?

I cannot speak for Senator Costello. Before you withdraw the amendment, I would like to say a couple of things. First, since I have often been accused in this House of activities which are prejudicial to the preservation of public peace, I am very glad that the 1940 amendment to the Offences Against the State Act is not in force at present. Given some of the comments about our unwillingness to support the institutions of the State, I suspect those of us in the back benches might be the first targets for detention.

I want to make it clear that the reason I support Senator Costello on the first of these two amendments is because I would like to make it as difficult as possible to introduce internment without trial, because in my view it was used improperly in the past, it was threatened improperly in the 1970s and it is something that should only be resorted to when there is a real threat to the State, and not when the Government think it is a useful weapon to pacify a particularly outraged public opinion. Therefore, the protection of those who have the job of looking after internment should be a part of the legislative process to deal with internment and not part of the ordinary law of the land.

Similarly, the Minister can say over and over again, like a cracked record, that in relation to a prison officer as defined, or a person having duties in relation to the custody of a person detained in prison, that that does not include officers of the Department of Justice — or maybe it does — and that it does not include the Minister for Justice, but I know and he knows that the Minister for Justice on a regular basis decides whether people can get early release or can go on various training programmes, whether they can have parole or a whole lot of things, because we all have files of letters saying "I am directed by the Minister to say" that he did or did not decide on a particular case of a person in custody to do something. I do not know how the laws of logic could lead me to any other conclusion than that the person who writes those letters, the Minister for Justice, each of which is written in relation to the custody of a person detained in prison, how the person who does that is not covered by this section of the Bill.

I know the Minister is a nice man, a decent man, and a good friend of mine over the years we have been in politics, but it is not good enough to say that it does not mean what he says, it means. It is up to him to explain to me why it does not mean what I think it means and to explain it in simple language, or perhaps somebody else can explain it to me in simple language why it is that something that makes perfect sense to me does not apply in the way I think it applies. In relation to the group the Minister for Justice set up to review the cases of people who have long sentences, do those people have duties in relation to the custody of a person detained in prison? It is one thing to attempt to protect people who are actually responsible for protecting prisons or prisoners or guaranteeing that prisoners do not abscond, we can all see the logic of that, but to throw in a catch-all phrase in case you have not thought of somebody is the ultimate in sloppy language.

Finally, why is it that the murder of a garda or of a soldier when he is guarding prisoners is a worse offence than the murder of a soldier when he is guarding something else? Nowhere in this legislation is the murder of a member of the armed forces treated as having the same gravity as a member of the Garda. Why are the Army picked out in a certain cases as deserving of this protection? I am fascinated, and I listened with interest to the Members of this House particulaly who think that deterrent is important, how we are going to get the criminal mind to understand that for murdering a soldier who is guarding prisoners he will go to jail for 40 years but if he murders a soldier somewhere else he will go to jail for the rest of his life, and how he would appreciate the distinction for that matter. The logic of all this, as I have said before, escapes me. I would like the Minister to explain to me why I misunderstood this simple English.

I would like to make one point arising from what Senator Costello said. When I visited Portlaoise Prison I never looked upon myself or my colleagues as being part of the establishment. According to the book of rules with which we were supplied, we were there to guarantee and monitor the rights of the prisoners and every representation we made was to the Department and to the Governor to alleviate or to extend parole. Certainly, we never came across an occasion when the committee would be asking for the removal of an offender's privileges. It is very difficult for an ordinary member of the prison committee to get the respect and the confidence of prisoners. It takes quite a long time to be able to show them that the role of the voluntary members of a visiting committee is to serve and to endeavour to make the situation as humane and as socially acceptable as possible. I would be aghast to think of a prison committee recommending the imposition or the removal of privileges from any offender.

Acting Chairman

Is the amendment withdrawn?

Has the Minister anything to say?

The Minister will reply, of course.

Before the Minister replies could I put one other point, first in relation to what Senator McDonald has said? Of course, we expect a visiting committee to operate in the best way they can in relation to their duties; but remember that they have a dual duty and that one of them is to inspect and monitor the prisons and to report to the Minister. They have a second duty, which is one of discipline, and they have authority to remove privileges and take remission and to put prisoners in irons. Those are their duties, to do that wherever it is appropriate.

They could make recommendations.

Those are their duties under the law. The point I want the Minister to address in his reply is: why do we have this particular definition in relation to prison officers when we do not have a similar definition of a garda?

I did not catch the second part of what Senator Costello said.

Sometimes we have the Army operating as a backup to the Garda, particularly in relation to the removal of money from banks and so on. Surely, if the Minister now tells us that the purpose of this particular phase is to protect members of the armed forces when they are operating as security forces in relation to the Prison Service, then surely we should have a separate section saying "Garda Síochána includes any member of the staff or any member having duties in relation to the custody of," because sometimes, and increasingly so, we have members of the armed forces supporting the Garda in their activities. There is another anormaly in that area, so I really think the Minister should go back to this particular amendment and come up with an improvement.

There are two points I want to make. The first one is in regard to where Senator Ryan, Senator Costello and perhaps Senator Norris talked about this "state of war". I took a note of it at the time and I meant to reply to it. This country is not in a state of war. I do not think any Member of this House said we were in a state of war, but one Member said that, if one could take in the context of Northern Ireland, perhaps it would be in a state of war — but perhaps only. Nobody has said that and I want to clarify that situation. In the context of Northern Ireland only, that is what was said. We will see the record.

Let me say that with regard to the definition in subsection (3), "prison officer" includes any member of the staff of a prison and any person having the custody of or having duties in relation to the custody of a person detained in a prison, so that includes a soldier or soldiers, a garda or gardaí if they have the custody of or have duties in relation to the custody of a prisoner or prisoners. That is very clear. There is no ambiguity whatever in that. It does not include the Minister for Justice. It does not include the staff of the Department of Justice. It does not include visiting committees. It does not include inspectors or members of a commission who have a particular judicial, legislative, ministerial function or a particular delegated function to carry out. It is very clear and I do not think that there is any ambiguity about it. I hope we can agree the section on that basis.

Is the Minister saying to me that the Minister for Justice is not a person who has "duties in relation to the custody of a person detained in prison"? I have obviously been writing all my letters to the wrong person because the Minister has no duties in relation to a person detained in prison. Whom should I write to? Obviously, I am writing to the wrong person, because the Minister has no duties in relation to a person detained in prison. Obviously, I should write to the Army because they have what the Minister does not have——

I think I have to reply to Senator Ryan. There is no point in being facetious about this.

I am not being facetious.

This is a serious situation. The Minister for Justice has a political function to carry out and execute on behalf of prisoners in this country as he is charged with the overall political governmental responsibility for them. We are talking here about a Bill which clearly defines who is a prison officer, who can be construed as a prison officer in the course of the execution and the functional operation of the custody of prisoners. There can be no doubt about that. The Senator can still make his representations. There is no need for me to respond to him on that. He knows full well whom to write to in all cases, I have no doubt about that.

I am sorry. This is extremely important. I have seen legislation going through this House which defined a crossbow as a firearm. The words mean——

It referred to an offensive weapon.

No, as a firearm. It is under the firearms legislation.

And dangerous weapons.

Acting Chairman

That is not relevant now. We are on the amendment.

The words mean what the legislation say they mean. I do not like sloppy legislation going through this House.

Neither do I, and I have no doubt this is very tight.

The Minister may know what he means by a "prison officer" and I think I know what a prison officer is. But let us be very clear here. A prison officer here, in the Minister's words, include soldiers who are on duty at a prison. That is not what people outside understand, so, actually, in the Minister's own words, the words do not mean prison officers as the ordinary citizen understands it. The question then is not whether we are talking about prison officers, but where this definition leaves us. This definition leaves us quite clearly to either the position where the Minister for Justice is covered or else the Minister for Justice is not a person who has a duty in relation to the custody of a person detained in prison. The Minister cannot have it both ways. Either he is talking about prison officers, as we all understand them, in which it should say, a member of the staff of a prison. Alternatively, it means what the phrase says and what the phrase quite clearly means——

Acting Chairman

There is too much repetition now. The Senator is repeating the same thing over and over.

This is not repetition. This is sloppy legislation brought forward without people thinking it through and it is our duty to have it sorted out.

It is not the Minister who will interpret this legislation. While the Minister has given it as his opinion that it refers to the Army — wherever he came up with that notion — in the context of what the wording is actually here it is beyond my comprehension. It is the courts that will make the distinction and the definition in so far as the intention is encompassed in the wording. The Minister has not answered the further question I asked him, which was: what is the situation if the Garda, in the course of their duty, are supported by the Army? Does that mean that if a garda was killed then it would be subject to the terms of section 3 of the Bill, but if a soldier was killed, then it would not? How does he deal with that anomaly? In other words, in relation to the prison context we have no specific statement or definition in relation to a garda. I think that is part of what we have been complaining about in regard to this legislation. It is far too loose. There is no statement in relation to the Army, in relation to any back-up for the Garda in the course of their duty.

I would like just to say that I was surprised, Sir, that you interrupted Senator Ryan when he was attempting to argue——

Acting Chairman

I did not interrupt him. I was referring to the fact that he was repeating himself.

Exactly, you interrupted him to incorrectly state that he was repeating himself.

Acting Chairman

On a point of correction, when the Chair intervenes he is not interrupting.

I beg your pardon. Well, you were intervening. When you intervened, incorrectly, to refer to what you mistook for repetition, it was in fact a very good example of argument by analogy which I think must——

Acting Chairman

I think you should keep to the amendment. Please do not give me instructions. I am quite capable of managing here. The trouble with some of you people is that you think you know it all. Just keep to the amendment.

I am just pointing out that argument by analogy is a recognised form of argument and one which the Seanad ought be quite capable of tolerating.

He thinks he is in the university.

Did I hear an intervention?

Acting Chairman

That was an interruption.

I have only a small point. It is that the language used is perfectly clear where it says "or having duties in relation to the custody of". That is a clear definition. It obviously includes the Minister for Justice, if words have any meaning at all. It obviously includes prison chaplains, cleaners, visitors, because otherwise words and language in legislation have no meaning at all. I apologise for introducing the world of literature which will perhaps make people on one side of the House feel very uncomfortable because they referred in deprecating terms to education.

Acting Chairman

This is repetition. Would you keep to the amendment, please?


On a point of order, I have been here since 2.30 p.m. and this is about the third time that that Senator has either insulted or has made statements which the Chair should have made him withdraw. We do not need lectures from him. May God forgive the people who elected him.

Acting Chairman

I feel this point has been adequately discussed. As I said, there has been a fair amount of repetition. As the debate is due to adjourn at 6 p.m., I would like to clear these two amendments before we adjourn. Is amendment No. 6 withdrawn.

Amendment put and declared lost.

I move amendment No. 7:

In page 4, lines 17 and 18, to delete ", or having duties in relation to the custody of,".

Acting Chairman

Is the amendment being pressed?

The question is: "That the words proposed to be deleted stand."

The Committee divided: Tá, 36 6; Níl, 6.

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh
  • Byrne, Seán.
  • Cassidy, Donie.
  • Conroy, Richard.
  • Cosgrave, Liam.
  • Dardis, John.
  • Doyle, Avril.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Honan, Tras.
  • Howard, Michael.
  • Hussey, Thomas.
  • Jackman, Mary.
  • Kennedy, Patrick.
  • Keogh, Helen.
  • Kiely, Dan.
  • Kiely, Rory.
  • McCarthy, Seán.
  • McDonald, Charlie.
  • McGowan, Paddy.
  • McKenna, Tony.
  • McMahon, Larry.
  • Neville, Daniel.
  • O'Brien, Francis.
  • Ó Cuív, Éamon.
  • O'Donovan, Denis A.
  • Ó Foighil, Pól.
  • O'Reilly, Joe.
  • Ormonde, Donal.
  • Ryan, Eoin David.
  • Staunton, Myles.
  • Wright, G. V.


  • Costello, Joe.
  • Norris, David.
  • Ross, Shane P. N.
  • Ryan, Brendan.
  • Ryan, John.
  • Upton, Pat.
Tellers: Tá, Senators Wright and Fitzgerald; Níl, Senators Costello and Upton.
Question declared carried.
Amendment declared lost.

Is section 3 agreed?

Progress reported; Committee to sit again.
Sitting suspended at 6.15 p.m. and resumed at 6.45 p.m.