The amendment seeks to ensure that the defence of lawful sanction will not be available in relation to acts carried out which are contrary to established tenets of international or Irish law. The Deputies wish to ensure that the most brutal actions of a repressive regime will not be protected because they are lawful according to the legislation drawn up by that regime. This is a valid concern and is part of the complexity of issues and dilemmas considered by the drafters of the convention. They met those complexities by adopting an open approach in relation to lawful sanctions - they decided against the qualifications proposed by the Deputies.
Before I deal with the difficulties presented by the amendments, it would be helpful to explain the complexities faced by the drafters and why I followed their approach. I can do no better than refer to the handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states that the second element of Article 1 is probably the most controversial element of the whole article. It provides that torture does not include pain or suffering arising only from, or incidental to, lawful sanctions. It has often been said that this is a too far-reaching exception since it might be interpreted to allow a state to practise methods which would normally be regarded as torture by making them lawful sanctions under its own legal system.
It has been argued, however, that while the convention was intended to strengthen the existing prohibition on torture in international law, it was not intended to lead to a reform of the system of penal sanctions in different states and if that had been the intention the convention would have been unacceptable to a number of countries.
It is therefore true that the defence of lawful sanction is available and persons who committed acts which would be considered torture by international standards would no doubt attempt to invoke the defence of lawful sanction using the shield of dubious law. I have given this possibility some consideration and I have come to the conclusion, just as the drafters of the convention did, that the defence should not be qualified. I have taken that approach on the basis argued during the negotiations that the term lawful sanctions would be considered by the courts to determine whether what is presented as lawful is genuinely lawful. Effectively, this means that it is left to the court to decide, having regard to all the circumstances of the case, whether what is purported to be lawful is, in fact, lawful.
To succeed in claiming the defence of lawful sanction, it would not be enough to show that the sanction is technically lawful - it would also be necessary to show that it is in essence lawful. In such circumstances a court can reject a defence put forward by a brutal regime of dubious lawfulness.
This approach reflects the approach I have taken generally to incorporating the convention into our law. I have tried to ensure that, as far as is possible in criminal law, and having regard to the need for certainty, we have used the actual wording of the convention in the Bill. I have taken this approach to allow, as far as possible, an application of the convention here which is unfettered, save for any restrictions which our courts might apply in the interests of justice or in accordance with our Constitution and our obligations under international law.
This approach leaves it open to a court to decide what was lawful at the time the behaviour was committed. I cannot, nor would I wish to, dictate to a court the approach it should take in interpreting the law. I am, however, leaving open to the court the possibility of taking into account not just current international law but also developments in international law and international instruments adopted after this legislation comes into effect. For example, if at a point in the future an international instrument is adopted forbidding certain penal sanctions, the lawfulness of which might be accepted at present, the court will not be prevented by the wording of this section in bringing that development into account.
Despite the excellent intent of Deputy O'Sullivan's amendment, it only serves to muddy the waters in dealing with the section without the clarity necessary in criminal law. The legal effect of the reference to "without prejudice to any international instrument [or] enactment" would probably be no more than the creation of a statement of the obvious - that such instruments are not affected by the section. It is confusing to add to the reference and I would be concerned at the creation of such confusion.
The reference to "any international instrument" could cause problems in a definition of criminal behaviour because it must be remembered that what is included in international conventions arises in the context of a binding agreement and states "not in establishing criminal culpability".
I would also have difficulties with the reference to "domestic enactments" as it could raise doubts as to whether any sanction prohibited by our law would have to be deemed unlawful in accordance with the section if committed in another country. If this were the case, then we could be accused of engaging in the practice of exporting our laws, a practice which would be in breach of international law.
For example, it could mean that an executioner, in performing his functions in the United States of America, could be prosecuted under this section because the death penalty was finally abolished as a sanction here in the Criminal Justice Act, 1990. The majority of people here abhor the death penalty but that does not give us the right to decide that a person acting in accordance with the legitimate law of his or her land should be liable to criminal prosecution here.
Deputy Jim Higgins's amendment does not add clarity. It simply refers to section 1 which provides for the very defensive lawful sanction which he wishes to qualify. This is a complex matter and I understand the Deputies' concerns, which I share. However, these concerns are best met by the approach I am adopting. In these circumstances I hope the Deputies will understand why I cannot accept their amendments.
