Dáil Éireann díospóireacht -
Thursday, 5 Dec 1963

Vol. 206 No. 6

Committee on Finance. - Criminal Justice Bill, 1963—Committee Stage.

SECTION 1.

Mr. M.J. O'Higgins

I move amendment No. 1:

To delete all words after "offence" in page 2, line 10, down to the end of the section.

Might I explain with regard to this amendment, and certain other amendments standing in my name, that I regard all these amendments as standing together. As far as I am concerned, the only one I want to discuss is the first of these amendments. I move this amendment for the purpose of enabling the Dáil to discuss and, if necessary, to decide and vote on the question of the total abolition of capital punishment. I expressed the view on Second Reading that, while I was prepared to support this Bill as far as it went, I did not think it was going far enough. I thought the Bill was to some extent illogical. I thought the principles which the Government were apparently acting upon in bringing in the Bill in the first place did not run completely through the Bill. While the principles were accepted as far as certain portions of the Bill were concerned, they were not accepted as far as other portions were concerned.

The first section is the section which provides that capital punishment will be abolished for murder except for certain categories of murder. The suggestion I am making is that this should be a simple, three section Bill, in which we should provide that a person shall not be liable to suffer death for any offence. We should then provide that a person who, but for this Bill would have been liable to suffer death, shall be liable to penal servitude for life, and we should simply leave the Bill at that.

I do not know that it is necessary at this stage to go through all the arguments discussed here on Second Reading as to the general pros and cons of capital punishment. I feel, as I said on Second Reading, that when this matter is brought before the Dáil, every Deputy is entitled to make up his own mind with regard to it. For that reason, the Fine Gael Party decided that this was not a measure in respect of which it would be proper to apply the whip. We felt it was right that every individual Deputy should be entitled to express his own point of view, governed by his own conscience and his own convictions. I am very glad to note that the Labour Party came to a similar decision with regard to the Bill.

The Bill as introduced by the Minister goes part of the way but does not go the whole way towards the abolition of capital punishment. There are certain categories of murders which are to become what are to be known under the Bill as capital murders and in those cases, the punishment of hanging is to be preserved. It is also to be preserved in certain cases under the Offences against the State Act and the Defence Forces Act of 1954.

One of the anomalies in the Bill as it stands at the moment—and this is a matter that was referred to here on Second Reading also—is that you can have under the Bill a situation arising whereby the occupation of the person murdered rather than the motive of the murderer will determine whether or not the punishment to be inflicted for the murder is to be capital punishment. That seems, certainly, to create a very anomalous and very undesirable position. It seems to me that if we have arrived at a stage in this country where capital punishment can be abolished for any class of murder then that we have arrived at a stage where capital punshment can be abolished for all sorts of murder.

The Minister, in reply to the Second Reading discussion, did concede that the arguments which weighed with the Government were not entirely logical and that as a consequence the Bill as it stands is not an entirely logical Bill.

I know that there is a point of view —and I appreciate it is a point of view that must carry a great deal of weight —that we have arrived at a position in Ireland where what I described on Second Reading as a kind of accidental compromise has been reached in that while preserving the death penalty, it is very seldom used and the Government almost invariably exercise the prerogative of mercy vested in them to remit the death penalty and to have the offender imprisoned for life instead.

While I fully appreciate the soundness of the point of view of those who feel that, that being the position, it is just as well to let it rest there, nevertheless, I feel that once this Bill is introduced, it is necessary for individual Deputies to make up their minds with regard to the Bill, with regard to what the Bill proposes to do and with regard to the general question of whether in the year 1963 and going into the year 1964, we should still retain the death penalty at all, having regard to the fact that we have before us the example of so many countries which have abolished the death penalty and have abolished it without any of the repercussions which those who argued down through the years in favour of the retention of the death penalty felt would occur once it was abolished.

I gave my own views on Second Reading as to why I was in favour of the total abolition of the death penalty and I do not feel it necessary on Committee to go into these again in detail, but I should like to say that one of the arguments which influenced me is the fact that the carrying out of the death penalty is an irrevocable act and there is strong reason for saying that any penalty which is irrevocable should be imposed only by a tribunal which is in itself infallible and that we cannot have that, no matter what precautions are taken, and I know the utmost precautions are taken against a miscarriage of justice. No matter what precautions are taken, none of us can claim that the tribunals which impose the death penalty or which are authorised to impose it are infallible.

That argument holds good, no matter what type of murder it is, whether it is what is to be described as capital murder under this Bill, whether it is to be what is described as political murder or whether it may be described as an individual murder. The argument holds good whether it is murder done impulsively on the spur of the moment or whether it is a calculated, planned murder. The argument that the death penalty is irrevocable and nothing can be done to remedy the situation if a mistake is made is the same, no matter to what type of murder the death penalty is applied.

I feel that this amendment, which is also put down, although independently of me, by Deputy Dr. Browne and Deputy McQuillan, does give Deputies an opportunity of making up their minds and taking a decision on the important question of the abolition or retention of the death penalty in this country.

Dr. Browne

Our attitude is the same as Deputy O'Higgins has indicated in regard to the discussion of the section, that we are just discussing the section for the purpose of giving the House an opportunity of considering its attitude to the whole question of capital punishment and its retention or its abolition entirely. The Opposition have decided to allow everybody to take his own decision about this very personal matter to each individual and for that reason to some extent it is necessary to talk to the House rather than to the Minister, which is the usual practice.

Like Deputy O'Higgins, I do not intend to go into the main reasons which I have already given on Second Reading and will confine myself to the fact of certain exceptions being made by the Minister in the question of capital punishment and asking him to try to justify his decisions in this regard, while at the same time welcoming the fact that he has got rid of capital punishment in relation to so much capital crime and so many kinds of murder.

It seems to me that Deputy Dillon put the most advanced conservative point of view on this and I am sure that he is convinced that he was speaking abolutely in the best interests of the people whom he represents in this House but I wonder at what stage will he accept what appears to be the substanial evidence against most of his postulates. He was supported to some extent by Deputy Cosgrave in his insistence, in spite of the evidence that we have that capital punishment is not a deterrent. This evidence was supplied by completely reputable sources: the Council of Europe survey, a very authoritative source with very wide experience; the British Commission which was set up to examine the same question, and the Minister's statement that, as far as he could ascertain, it was, at best, unlikely to be a deterrent or a serious consideration in the mind of the individual at the time of committing this dreadful crime.

That evidence being there, what further evidence do these people need? As has been pointed out by Deputy O'Higgins, the countries mentioned in the Minister's opening speech, most of the countries of Europe, have abolished capital punishment. We must assume that all those countries have exactly the same attitude as we ourselves have to life and the Government's responsibility to their citizens. All these central European countries, we must assume, are people with a conscience in this regard and that they have considered the desirability of retaining capital punishment or getting rid of it and have decided to abolish capital punishment.

The result of that abolition has not been any increase in the number of murders in those countries and that should be taken as a reasonable guide. Deputy Dillon's point was that you cannot really get statistical evidence on this question because if you keep capital punishment, it means that you will keep the number of murders down; consequently it is very difficult to know what is the real change when you remove capital punishment. Surely it would be reasonable to expect a rise in the incidence of murders where capital punishment was removed, if it is a deterrent, and there has not been such justification for those who believed it could be a deterrent.

My general precept—possibly, it is a little advanced—is that virtually all crimes are crimes of society, the result of environment and so on. I do not completely go along with Deputy Dillon's suggestion that we are all capable of not doing a wrong act at all times. The whole of our legislation in regard to criminal actions of one kind or another and the whole of the operations of the Minister's Department of Justice obviously disprove that. There are plenty of people who constantly commit crimes which, presumably, they have tried not to commit and for one reason or another, have failed to stop themselves from committing. The result is that a crime is committed and they are treated by the courts in one way or another and, unfortunately, I believe, by means of retributive justice rather than the rehabilitation of this person who is essentially a sick person.

There is a great difference in this regard so far as murder is concerned. While one still has the person in prison, it is possible for us to get a very enlightened Minister for Justice, it is possible for the present Minister for Justice to become very enlightened, even more enlightened than he is at the moment, to go to our prisons and say: "We will treat these prisoners as sick people and we will introduce a system by which it will be possible morally to reclaim them."

Mr. Haughey

That is the aim of our present policy.

Dr. Browne

I am glad to hear that. However, the difficulty is that it is possible to advance slowly in regard to criminals generally but in regard to the unfortunate people who are convicted of murder and executed, they are not there. This is, as Deputy O'Higgins said, an irrevocable act and it seems to me consequently to be a particularly terrible act. I cannot see any difference between the act as committed by us and the act as committed by this unfortunate person. There is a saver in relation to the person who murders in that he is mentally unbalanced.

Deputy Dillon is not completely frank with us in the statement of his case and it seems to me to conflict very much with the case made by Deputy Sweetman as to whether, assuming it is not seriously accepted as a deterrent, this punishment is justifiable and whether retributive justice is permissible, as Deputy Dillon says. I do not know what his authority for that is at all. I am sorry he is not here to tell us what his authority is for this suggestion, that we have the right to look for vengeance, which is what it amounts to when it affects a capital charge.

Deputy Dillon said in column 1114, volume 205, of the Official Report of 7th November, 1963:

There is such a thing in the Divine plan as retributive justice ...

Deputy Sweetman in his contribution at column 1102 of the same volume said:

We are, of course, long past the days in which punishment was considered as an act of vengeance, an act, in the minds of the people then carrying it out, of just vengeance. That is gone. The retributive character of punishment to which reference was made by one Deputy ...

That is a very serious difference of opinion between two intelligent Deputies and particularly in relation to a Deputy in such a position as is Deputy Dillon. Does he seriously believe that this is a retributive act which we as a society are permitted to carry out by any of the Christian laws? I would like to have heard more about that from Deputy Dillon.

Of all these other countries we have heard about—Austria, Denmark, Finland, Greenland, West Germany, Iceland, the Netherlands, Norway, Portugal, Sweden, Switzerland—most of them are Christian societies. Most of those countries observe the Christian ethic in their behaviour to one another and in their legislation. Are we right and are they wrong? Are they wrong in not claiming the life of a person on the basis of an eye for an eye, the Biblical approach to vengeance?

If Deputy Dillon can use that, I think he should be prepared to state his authority because it is a most important conclusion for him to arrive at. Anybody who is so completely confident about these things is a dangerous person because, as even Deputy Dillon said, there is a great difference of opinion between the medical people on this question of responsibility. I can give authority for both sides, one for saying that a person is responsible and the other from people who have examined most of our murderers and are prepared to say all of them were irresponsible, that they were not responsible for their actions.

The only importance of that is that there is a serious divergence of opinion between reputable authorities on the question. My feeling is that while there is that divergence, one should err on the side of charity when it comes to determination of what one will do. Where there are serious doubts in the minds of conscientious men, of psychologists, it seems to me one should not adopt Deputy Dillon's attitude and say: "All right; we will kill them". He is taking a decision to carry out a very dreadful act.

While one is reasonably uncertain, particularly being in the position of a Minister who has the final authority for these things, I think it is wrong to come down on the side which, if it is the wrong side, obviously is a most serious conclusion to arrive at. I do not think it is right for us to be so absolutely certain as some Deputies are in regard to this whole question of guilt for crime and then what they consider to be just punishment for that crime, even if one does accept this question of absolute responsibility at a particular time for this dreadful crime.

It seems to me that even if you accept that point of view, and I do not accept it, then one can overlook the fact that the most important aspect in the whole question of crime is not only that there is isolation of the particular person, but there is his rehabilitation and, above all, ultimately forgiveness for that individual. That is the correct approach to all forms of crime, but here, by killing the person, by destroying the human body, one removes the possibility of rehabilitation of the individual, of his restoration to a reasonably normal attitude and to a useful position in society. Above all else, one destroys the most important element, that of forgiveness for that particular crime.

The Minister has excluded this element and has some support from Deputies for so doing. To some extent, one who is a professional politician like myself must always admire, in an academic, abstract way, the achievement of an individual placed in this situation, the intellectual contortions he makes to justify his position, but I think he must see that there is no rationalisation for his decision to take certain sections of the community and treat them completely differently from other members of the community, particularly since he broadly appears to accept that the only possible justification that might be held for such action was that it was a deterrent and, consequently, justifiable.

Personally, I think it is an exceedingly wrong act to take a human life, and even if it were a deterrent I would still oppose the idea of capital punishment if only for the old axiom that the end does not justify the means. If the Minister is faced with the position with which he appears to be faced, that he does not seriously believe that this is a deterrent, then he simply cannot justify the exceptions he has allowed here.

He seems to me to have adopted the very bad general principle of the British legislation on this matter in trying to make exceptions. The British are now finding that these exceptions made bad law and they are doing some rethinking in regard to them. In the special cases which the Bill mentions, the odd thing is that the Minister is asking us to legislate, in regard to two of them anyway, for a crime that does not exist in so far as it never has happened, and while I may be accused of being too——

Mr. Haughey

Chauvinistic.

Dr. Browne

While I may be said to be criticising legislation in respect of an act which will never occur—we have been told that there will be no hanging because this is a crime that has never been committed and will never be committed—at the same time we must bear in mind the position of ourselves vis-à-vis other countries and their attitude to human life, their regard for the human body and all that it means—the most precious thing that there is. The regard with which that is held in society is a measure of the level of civilisation in that society.

One of the things that distresses people who have to go abroad is the appalling attitude of apparent indifference to the physical suffering and life and death of the individual, particularly in many of the African countries. I hope I am not appearing to criticise these people now, but I should point out that the more a society becomes civilised, the more this precious thing, human life, is guarded as a measure of that civilisation.

For that reason, even though the Minister may say nobody will be killed, nobody will be hanged for these crimes because they do not exist, I still do not think we should have that legislation on our Statute Book because it does not do us any credit as a society. The Minister has spoken of the advance, the progress since the 19th century. He is here legislating for a non-existent crime and I do not know what his justification is. Obviously this is the argument used by Deputies O'Higgins and Dillon—that it is absurd to pick out somebody because he happens to be in a particular position and say he is a special person who needs special protection, even though history has shown us he does not need special protection. Social justice demands that he should not get different treatment from that which any of the rest get. We must all be equally precious to the society to which we belong and it is a departure from that principle to single out these people for a special kind of consideration.

The Minister appeared to make the point that our police are not armed. I do not know if he means to imply that they need more protection because of that. It is because they are not armed that no guns have been pulled against them. There is an Indian proverb which says: "If we meet violence with violence, where will violence end?" And, to my mind, it is the prolification of offensive weapons which leads to crimes of violence in most cases. The reason Gardaí have not been attacked is that they do not carry guns and the fact that they do not carry guns has been a protection for them in the past. The same can be said of the prison officer.

Now we come to the question of the diplomat and political crime. Here again, with regard to the diplomat, we are legislating for a non-existent crime. Deputy Dillon made reference to the fact that the third secretary of an Embassy might be murdered but the Minister made it clear that he meant murder committed against a diplomat. That is a non-existent crime in this country and I do not see why it is necessary to introduce this legislation to deal with something that does not exist and never has existed here. On the question of the deterrent against this type of crime, could there be a more tragic refutation of the Minister's thesis than the recent dreadful events in America and the fact that four United States Presidents have been assassinated at different times, even though hanging is the penalty for this crime? I cannot see any justification for the inclusion of this particular type of exception in the legislation.

Now I come to murder committed under the Offences against the State Act. This seems to me to be the thorniest question of all. The Minister suggests that the people who commit such crimes are not going to be deterred by prison. If he has studied history at all and in particular, if he has studied the history of this country, he will find that those who have committed such crimes have received the martyr's appellation and that those who were killed had been assassinated. Practically all of the advances in civilisation over the past 100 years have been the result of various coups d'état carried out in various countries and the centre of these has been the murder of the principals then occupying office.

That has been the most common general finding in relation to the recent history of the world, with the wonderful exception of India where Gandhi believed in and carried out the great campaign of peaceful and civil disobedience and, without violence, carried out the most wonderful achievement since Christ of the liberation of a whole sub-continent by the persuasion of the individual.

Mr. Dillon

You give no credit to Clement Attlee.

Dr. Browne

He did not have to go to prison and Gandhi and Nehru did.

Mr. Dillon

He executed the act of liberation. Give the devil his due.

Dr. Browne

He played his part but the great achievement was by Gandhi and Nehru. I do not think that any of these people who took part in these various coups d'état did so except under the threat of subsequent hanging, shooting or garrotting in these different countries. I can come much closer home in the seven centuries' long struggle of our own history when there were capital crimes committed against the different States here. They were all committed by courageous men. They are our national heroes, the people in memory of whom we are doing up Kilmainham jail, some of whom are still with us on our front benches. These were all men of great courage but all men who decided at a certain stage in their lives that, if necessary, they would take life in order to alter the political situation in our society.

It was quite clear to those men, all honourable men, at that time that capital punishment was not going to be a deterrent to them. Because it was not a deterrent, I am now speaking here in a free Parliament. It is difficult for me to pass judgment on these issues and to decide on their morality. These people decided to take life because of these things and these principles and only history can really make the final decision on their conduct. I think that for a Government to make these decisions, in the context of the awful conflicts that accompany all these great changes in every society, is to make a very bad decision that is terribly unjust.

I am glad the Minister has taken the advances he has taken. They are much less than I should like, but presumably he has done his best. Has he any reason to believe there would be any objection to completing the job and leaving, to stand in his name as Minister for Justice, the fact that he abolished capital punishment, that he had the courage of his convictions because, from what he has said, it seems his convictions are very close to ours and against capital punishment? We think he should take his courage in his hands and abolish the business of killing people judicially for the crime of murder.

General MacEoin

I rise to support the amendment moved by Deputy O'Higgins for the total abolition of capital punishment for all offences. I do so for different reasons from those given by some of my colleagues and by Deputy Dr. Browne.

This problem has always been very difficult, from the first murder on record, when Cain killed Abel. The result was exile and not death, but from the record we find that, in a sense, exile was an even heavier punishment than death itself. I am interested only in the abolition of the death penalty for one main reason, that is, that the innocent may suffer, not the guilty. It is a serious matter that cannot be rectified by compensation or in any other way, if an innocent person is judicially executed for a crime he did not commit. The seriousness of that convinces me we should not have a death penalty at all.

Speaking from experience, let me put it this way. The death penalty is not as serious as some might think when it is imposed. It gives a human being for the first and only time in his life the exact moment of his death which, fortunately or otherwise, is knowledge otherwise hidden from us. Believe it or not, nobody was happier than I when I knew I had to die on a certain date because I had every opportunity of saving a soul at that time. I had an opportunity that—God help me—I have not now. I know I must face death at some time and I can only hope and pray that I shall be as ready then as I was at that stage. When we become sentimental about it, we can travel any distance, but when I look at this Bill and see that a person who is convicted without a shadow of doubt of deliberately and with intent murdering the father or mother of a family, I see that he is to be put in prison for the remainder of his life.

Again, speaking from experience, if it was really a life sentence—for a long time it never has been so except in certain American States—it is the harshest penalty that can be imposed. There is no hope and you do not know when you will be called before the final Judge. You are left in confinement in the knowledge that everybody regards you as despicable and it begets in the prisoner's heart a hatred of mankind, and particularly of his warders and jailers. It leaves him unfitted to face the next world. It puts him in a difficult if not impossible position.

For the type of murder I mention, we are going to impose that terrible penalty. On the other hand, if he killed another type of person, he would be executed, an officer of the State or a person who has diplomatic status. I presume we shall not execute him unless he is convicted and found guilty beyond doubt. What do we do with him? We give him an opportunity of stringing a harp within two hours of the rope being put round his neck. We give him the greatest possible prize while the man who slays the breadwinner is to be kept in prison.

It is a very difficult question but broadly I come down strongly on the point of view that here, where executions are and always have been looked upon with horror and where they have not been carried out except very rarely, I think the obligation on a Government of deciding whether a man will live or die is such a serious one that it should not be placed upon them. At least we should give the abolition of the death penalty a trial. If—God forbid—things got out of hand and we had to restore the death penalty, that would be another day's work. We would have done our best. I am very conscious of the fact that, by abolishing the death penalty and putting a person in jail for the remainder of his natural life, we are imposing a very harsh penalty.

Progress reported; Committee to sit again.

The Dáil adjourned at 5 p.m. until 3 p.m. on Tuesday, 10th December, 1963.