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Seanad Éireann debate -
Thursday, 5 Jul 1990

Vol. 125 No. 15

Criminal Justice (No. 2) Bill, 1990: Report and Final Stages.

Acting Chairman

Four amendments have been put down for Report Stage and the list is now being circulated. I want to remind Senators that on Report Stage a Senator may speak only once on each amendment, save the mover of the amendment who has right of reply. Amendments Nos. 1 and 3 are alternatives and may be discussed together.

I move amendment No. 1:

In page 3, line 17, after "Garda Síochána" to insert "and a member of the Defence Forces".

This is a very simple amendment which seeks to include the members of the Defence Forces in section 3. Section 3 (1) (a) would then apply to the murder of a member of the Garda Síochána and a member of the Defence Forces acting in the course of his duty. This complements what we discussed on Committee Stage when this side of the House agreed that the Defence Forces should be included in the special category of murder or attempted murder under the Bill. What we are asking is that the sanctions under section 4, 40 years mandatory sentence for a murder or 20 years for attempted murder, include not only the Garda Síochána, members of the prison services and the others included in section 3, but also the Army because they are an inherent arm in the defence of the State and our democratic institutions.

It may be that the reason they were not included when capital punishment was retained for certain sections was because the Army were not seen as being under threat at that time. We must bear in mind that this was long before the outbreak of the present violence in the North of Ireland where armed robberies and so on were not taking place. The Garda and the prison services were the only people at the coalface when fighting crime but this has changed dramatically and now the Army are often involved with the police force. They should be protected to the same extent, not only protected when they are in the company of the police but protected at all times. Most of the time they are on duty because they are on call at very short notice, depending on the circumstances prevailing.

I am convinced that if the present violence was taking place when the death penalty was retained for certain categories of people the Army would have been included. We are updating the position of the Army to cater for the circumstances in society.

I should like to second the amendment. I do not wish to detain the House. It is a very simple amendment. Where we have units of the Army working in close co-operation with the Garda Síochána they should all be treated in like manner. It is bad enough for members of the Army to be remunerated on a much less generous scale and fashion than the Garda but to treat the murder of a member of the Defence Forces while on duty in a different way would be unforgivable and disastrous.

My amendment, No. 2, states:

In page 4, between lines 10 and 11, to insert the following:

"‘member of the Garda Síochána' means member of the police force and includes a member of the Defence Forces acting in support of the Garda Síochána.".

I tabled it for Committee Stage but it was ruled out of order. The amendment arises out of the anomaly we referred to on earlier Stages. The Minister who took the Committee Stage indicated that the term "prison officer" went on to cover security forces, that is, the Army, acting in consort with prison officers in the context of security. Since there was no reference to a similar provision for the Garda we are seeking to eliminate that anomaly by including an explanation that a member of the Garda Síochána means a member of the police force and includes a member of the Defence Forces acting in support of the Garda Síochána. As I said earlier, my position on this would have been simply that there should be one offence and that offence should carry a sanction of life imprisonment. It is our function as Senators to try to eliminate anomalies and improve the wording and meaning of the Bill.

The amendment seeks to clarify the position and give that "protection" to the third arm of the law, the Army. It would be contradictory if we stated that we would give that protection to two of those arms of the law which protect the institutions of the State and do not give it to the third.

I accept the philosophy behind the amendments tabled by Senators Costello, Upton, Ryan and Harte, Neville and McDonald.

It has been explained earlier why the Minister is reluctant to make changes at this point for what have, up to now, been capital offences. Soldiers are covered by section 3, where they act as prison officers. That is as it should be. Where the Army assist the Garda they are not Garda but are assisting them. If I were to accept this amendment then I could go down the road a considerable distance to consider how many more categories should be taken in, people who assist the Garda such as the fire brigade, civil defence and so on. If a soldier is shot and killed while assisting the Garda, it is not as if the perpetrator of that crime will get off. That person will be charged with murder and, if found guilty of that charge, will get the sentence I was pressed very hard to accept, life imprisonment.

The Minister is talking about anomalies.

It is with reluctance that I have to say I am opposing the amendment.

I cannot accept what the Minister has said. One cannot compare members of various organisations the Minister has mentioned with the Defence Forces. The duty of the Defence Forces is to protect the institutions of the State. They are armed people who are defending the institutions of the State. They are in a defensive role, in a military role, and as such their responsibility invites from certain terrorists and other elements a reaction against them. They are charged, like the Garda, with the defence of the democratic institutions of the State. We must show them the same concern we rightly show for the taking of the life of a garda, or the attempted taking of the life of a garda. We must show the same commitment to deterring criminals, and other terrorists elements, from attacking members of our Army. Occasions may arise when our Defence Forces may be engaged in a defensive way against terrorist elements within our society. They must be protected and we must have the same deterrent in their circumstances as we have for the Garda. I cannot accept the Minister's view that our Defence Forces are the same as other groups such as the fire bridgade and others he mentioned.

Amendment put.
The Seanad divided: Tá, 16; Níl, 24.

  • Cosgrave, Liam.
  • Costello, Joe.
  • Hederman, Carmencita.
  • Howard, Michael.
  • Jackman, Mary.
  • Kennedy, Patrick.
  • McDonald, Charlie.
  • Manning, Maurice.
  • Naughten, Liam.
  • Neville, Daniel.
  • Norris, David.
  • O'Reilly, Joe.
  • Ross, Shane P. N.
  • Ryan, John.
  • Staunton, Myles.
  • Upton, Pat.


  • Byrne, Hugh.
  • Byrne, Sean.
  • Conroy, Richard.
  • Dardis, John.
  • Fallon, Sean.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Hanafin, Des.
  • Haughey, Seán F.
  • Honan, Tras.
  • Keogh, Helen.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Michael.
  • Lydon, Don.
  • McGowan, Paddy.
  • McKenna, Tony.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Ó Cuív, Éamon.
  • O'Donovan, Denis A.
  • O'Keeffe, Batt.
  • Wright, G. V.
Tellers: Tá, Senators Howard and Neville; Níl, Senators Wright and Fitzgerald.
Amendment declared lost.

I move amendment No. 2:

In page 3, between lines 28 and 29, to insert the following:

"(2) The offence of murder and attempted murder created by this section shall be called first degree murder and attempted first degree murder.".

Amendment No 2 is designed to put a name on this offence which hitherto has been nameless. I am saying here that the offence of murder and the offence of attempted murder created by this section shall be called first degree murder and attempted first degree murder, respectively. On Committee Stage I proposed that we would use the terms aggravated murder and aggravated attempted murder. The Minister has some reservations in that regard but he did say he considered it proper and desirable that the new offence should have a name. What I am doing is taking this opportunity to have another go at putting a name on a newly created offence. This time I am giving the Minister the opportunity of accepting the nomenclatures, "first degree murder" and "attempted first degree murder" for the offences in question.

I would like formally to second the motion. The arguments have been made earlier in the day, so I do not propose to repeat them.

I certainly appreciate the fact that the proposers of the amendment are attempting to introduce a term which they hope would distinguish from ordinary murder the type of murder dealt with in section 3. However, I still believe that the Minister is satisfied with the provisions as they are. As was stated earlier when the discussion took place on amendment No. 4, it is the status of the person who is murdered rather than the crime itself that is important in this context. The Minister would not accept that it is desirable that the offence be given a name. Therefore, I cannot accept the amendment.

Amendment put and declared lost.
Amendment No. 3 not moved.

I move amendment No. 4:

In page 4, to delete lines 16 to 18 and substitute " `prison officer' includes any member of the staff of a prison and any person acting in support of the staff of a prison."

This is an amendment that was placed on the Order Paper by Senator Brendan Ryan and myself. Again, the argument will be found in the record earlier in the day where we felt anomalies were created. This is an attempt to produce a wording that eliminates those anomalies by giving a more clear description of the personnel involved.

I second the amendment.

The effect of the definition of prison officer which has been provided in the Bill is that the special protection of section 3 will apply to prison officers, the staff of prisons and soldiers who are performing protection duties in prisons. The definition is in the form which has been prepared by the Parliamentary Draftsman. It achieved the purpose for which it was intended. We should not depart from it. Therefore, I cannot accept the amendment.

I support this amendment but I would like to express one concern. We are now on Report Stage and the Minister for Justice has only been in this Chamber to deliver his speech on Second Stage. I protest that he has been absent throughout almost all of the debate on this Bill.

In relation to that, may I say that at the moment the Minister for Justice is in the Dáil Chamber dealing with questions and he was at a Government meeting this morning. As the House is aware, the Order of Business was changed on Tuesday in relation to the Broadcasting Bill, which was due in the Dáil today. In fairness to the Minister for Justice, he still has not found how to be in two places at the one time.

Acting Chairman

I thank the Minister for his clarification. Senator Neville's intervention is irrelevant.

May I clarify this matter? At the Whips' meeting last week the Order of Business was changed to facilitate Senator Costello in particular, to take this Bill today rather than yesterday. We expected total co-operation and that this debate would be concluded by 1.30 p.m. today.

Acting Chairman

I thank the Leader of the House. Is the amendment withdrawn?

No. It is not withdrawn. I understand I have the right to make a brief comment since I was the proposer of the amendment. I thank the Minister and congratulate him for the way in which he took a brief "on the hoof". He did a remarkably accomplished job with the assistance of his advisers. One little reservation is that it is a pity that despite the intensive argument, which was deeply felt on this side of the House, no amendment was allowed. That is rather a pity. Again, I congratulate the Minister.

Amendment put and declared lost.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

On the Minister's behalf and on my own behalf, I would like to thank the Senators most sincerely for what were in the main very constructive contributions. The views and proposals which have been put forward, even though they have not been accepted, have given rise to valid discussion and that in itself, is very valuable.

The Bill we are passing today is a landmark. It represents an evolution in our approach to society and to penal matters. I am very proud to be associated in some way with the passage of this legislation.

I would like to thank the Minister for his courtesy and co-operation in the course of the debate on this Bill. All the criticisms that were made from this side were made in a constructive fashion. We are naturally disappointed that some of our worthwhile amendments were not accepted. There was certainly nothing vexatious or petty about any of them but none of them was accepted. We welcome this legislation as a landmark, as the Minister described it, and a very welcome development in relation to our sanctioning system.

I, too, would like to thank the Minister of State and the Minister for taking the Bill and for the courteous way in which our questions have been dealt with. I am glad I was present on this historic occasion when, finally, the barbaric death penalty is being removed from our Statute Books.

I would like to congratulate the Minister who was present this evening. I know he is not the Minister for Justice, but he performed excellently. He addressed any queries magnificently.

Question put and agreed to.