I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to abolish the death penalty for those offences for which it remains a punishment. The Criminal Justice Act, 1964, abolished the death penalty for all but a very limited number of serious offences. These are treason, capital murder and certain offences by persons subject to military law under the Defence Acts, such as mutiny with violence.
Briefly, capital murder is defined in the 1964 Act as meaning the murder of a member of the Garda Síochána or the Prison Service acting in the course of his duty. It includes also murder done in the course or the furtherance of certain offences under the Offences against the State Act, 1939, or in the course or furtherance of the activities of an unlawful organisation, or the murder of a member of Government or diplomatic officer of a foreign State.
The last execution carried out in the State was in 1954. In the period since the enactment of the 1964 Act, 11 persons have been convicted of capital murder although, in the case of two of them, the convictions were quashed on appeal and convictions of "ordinary murder" substituted. In the case of the other nine persons who were sentenced to death for the murder of members of the Garda Síochána the sentence was commuted by the President to imprisonment for 40 years.
In effect, this debate is taking place against a background where the death penalty has, in practice, all but been abolished. It has remained on the Statute Book as the mandatory penalty for treason and capital murder since 1964 but has never since been carried out. It may well have had some deterrent effect as long as there was a belief that it might be carried out. However, I think at this remove from the passing of the 1964 Act we have reached the stage where nobody really believes that the death penalty is again likely to be carried out. Therefore, any deterrent effect it might have had is gone.
In any event, I do not believe that the death peanalty represents the unique deterrent which some would argue. The overwhelming body of scientific evidence and studies available support my view on this. Indeed, in our own jurisdiction we have had the experience of abolishing the death penalty for what I might call "ordinary" murder in 1964 without any discernible effect on the murder rate. Furthermore, despite the retention of the death penalty for capital offences, the murder of gardaí in the execution of their duty has not been prevented.
Having said that, however, one has to take account of the rather unique security situation which has prevailed in this country for the last 20 years. We have, in addition to a growing number of armed criminals, armed subversive groups inimical to the very institutions of our State. In such circumstances my primary concern as Minister for Justice must be to ensure the maximum protection possible for those who have to defend our democratic institutions against such ruthless people. In the 1964 Act we retained the death penalty for a very limited number of crimes which we considered particularly heinous and dangerous to State security. In doing this we, as a society, signalled our particular concern and revulsion at such crimes.
I have to be concerned that a move now to abolish the death penalty for these crimes could give a wrong signal. It could be interpreted as a weakening of the Government's resolve to protect our gardaí and prison officers against those who would have no compunction in imposing a death penalty on them.
I think, however, that we can safely conclude that, after the experience of almost 40 years without the carrying out of a death sentence, formal abolition will have no adverse consequences provided — and this is important — it is replaced by the type of penalty which will signal the Government's continuing determination to protect our gardaí and our prison officers against those with murderous intent.
In finally abolishing the death penalty Ireland will be joining the vast bulk of western developed nations who have already done so. Within the European Community of Twelve only one other member retains the death penalty on its Statute Book and I understand that in that case moves are afoot to abolish it. Both the Council of Europe and the United Nations organisation have adopted instruments calling for the complete abolition of capital punishment.
I am completely satisfied, as are the Government, that there is no longer a valid argument for retaining the death penalty. The time is now right to eliminate it from our Statute Book. In doing so, we will as a society signal our concern for the dignity and sanctity of human life and strengthen our standing internationally as a country concerned to promote human rights and civilised values.
Turning now to the details of the Bill, section 1 is a very clear and direct. It says simply that no person shall suffer death for any offence. The rest of the Bill is largely concerned with the alternative penalty which will be imposed on a person who commits treason or what is now termed "capital" murder.
Section 2 provides that such persons will be sentenced to imprisonment for life. This is the mandatory penalty which was provided for non-capital murder in place of the death penalty in the 1964 Act. Some will argue that that sentence should be sufficient. They will say that murder is murder and that the same penalty should apply irrespective of the status of the victim. In a sense that will be the case under the provisions of the Bill. Life imprisonment will be the mandatory penalty for all murders. It is the severest penalty that can be applied for any offence short of the death penalty. It is the penalty which will be applied under section 2 of the Bill to what are now capital offences.
However, the matter cannot simply be left at that. The fact is that sentences of life imprisonment rarely result in anything like a life term being served. In a great many cases a person on whom a life sentence is imposed is not required to serve more than, say, ten to 12 years. Indeed, with the recent establishment by me of the Sentence Review Group under the chairmanship of Dr. T.K. Whitaker, formal provision is made for the review of all long-term sentences, except those imposed for capital offences, after seven years have been served.
A period of ten or 12 years imprisonment would simply not be enough to mark the particularly serious and heinous nature of the offences with which this Bill deals. Even more important than this, it would not be enough to offer protection to our gardaí and prison officers who, as we all well know, frequently have to put their lives on the line on society's behalf.
This is the essential difference between what I might term the murder of a civilian and the murder of a garda or prison officer in the execution of his duty. A civilian may become a murder victim for a myriad of different motives. He may be the victim of a crime motivated by passion, revenge, avarice, etc. all very reprehensible motives but the difference is, however, that the risk of any of us falling victim to such a crime is relatively remote. It is a matter of fate, a risk we all face more or less equally. The garda or the prison officer, on the other hand, is in a job where he is brought in frequent contact with criminal and violent people. It is their duty to protect the rest of us from such people. They cannot simply choose to avoid danger like perhaps we can.
Our gardaí and our prison officers deserve, therefore, the utmost protection we can give them. As we have a largely unarmed police force and an unarmed prison service, of both of which we are justifiably proud, we must rely heavily on deterrence to protect them. We must make it abundantly clear to any would-be killer that he will pay very dearly if he murders a garda or prison officer. This was the aim of the death penalty which we are now, with good reason, abolishing. We must be equally determined in applying the alternative penal measures available to us.
This is precisely what the Bill sets out to do. Section 4 provides that a person who is convicted of the murder of a garda or prison officer acting in the course of his duty or who is convicted of treason or one of the other crimes referred to in section 3 shall be sentenced to life imprisonment with the added stipulation that he or she must serve a minimum term specified by the court which must be not less than 40 years. This may seem an unduly harsh sentence. It is indeed harsh and it gives me no joy to propose it. I would like to be able to say that a lesser sentence would be adequate but I cannot. My primary concern and my primary responsibility must be to provide the maximum protection for the lives of those who serve society and not for those who do it mischief.
We should remember that while this Bill will remove the threat of a death sentence for subversives and criminals it will not remove the threat of such "sentence" for gardaí and prison officers. They will continue to face that threat. Those who would murder in order to evade justice have scant regard for human life. All that is likely to deter such people is the sure and certain knowledge of severe punishment if caught.
Let me illustrate the matter by an example. Suppose an armed robber is confronted by an unarmed garda who is attempting to arrest him. If he allows himself to be arrested he faces a possible "ordinary" life sentence on conviction of armed robbery, which could leave him free again after say eight or ten years. If, on the other hand, he shoots the garda, there is the chance that he will escape capture and possibly evade detection altogether. Faced by such a choice, I would contend that one thing that is likely to induce him not to shoot is the realisation that if he murders the garda and is caught he will face a sentence very much greater than that which he would get for armed robbery.
Some may still argue that while they accept that a severe penalty is needed it should be less than 40 years, perhaps 20 or 30 years. They might argue that the court should be given discretion to impose a sentence within a given range depending on the nature and circumstances of each case. These may well be arguable positions. Perhaps the robber in the illustration I gave will be equally deterred by the prospect of 20 years or 30 years imprisonment as he would be by 40 years. However, I am not prepared to take that risk. If I am to err in this matter I would prefer to err in favour of those who protect us rather than those who threaten us.
The fact is that since the passing of the 1964 Act the effective penalty for capital murder has been 40 years' imprisonment. I see no justification for changing this now simply because the death penalty is being formally abolished. It would not be safe, in my view and in the Government's view, to make any such change at this stage given, in particular, the security situation to which I earlier referred. Indeed, the very fact that we are proposing the abolition of the death penalty makes it all the more necessary that we make no other fundamental changes lest, as I said earlier, we give wrong and dangerous signals.
Section 3 also provides for a new offence of attempted murder of a garda, prison officer, etc. with a mandatory minimum sentence of 20 years' imprisonment for the commission of such an offence. This provision is in accordance with the thinking of the Garda Representative Association on this matter — it is a measure designed to enhance the statutory protection afforded to the persons concerned against murderous attack.
The Government are satisfied that this provision should be included in the Bill. An attempt to murder a garda or prison officer is morally every bit as culpable as murder itself. The aim of the perpetrator is murder. It may be purely fortuitous that he does not succeed.
Following on from sections 3 and 4, section 5 copperfastens the mandatory nature of the sentences by providing that the Government's and Minister's power to commute or remit sentences under section 23 of the Criminal Justice Act, 1951, will not apply to such sentences. Also it limits the Minister's power to grant temporary release under the Criminal Justice Act, 1960, to release for grave reasons of a humanitarian nature and then only for such limited period as is justified.
This provision is necessary to make it abundantly clear that the penalties set out in section 4 will not be watered down. No subversive or other criminal should be under any illusion if they decide to murder a garda or prison officer or commit one of the other offences set out in section 3 of the Bill as to what their punishment will be.
As I said earlier I know that some will criticise the length of these sentences and the lack of a review clause. While I appreciate the genuine nature of their concern and while I wish that I could take a more lenient approach, I am afraid I cannot. I cannot do so because I would thereby leave our gardaí and prison officers open to increased dangers. This I will not do.
The Bill, however, will enable prisoners serving sentences for the offences in question to earn the normal remission for industry and good conduct applicable under prison rules to prisoners generally — this will be deductible from the period specified by the court. This remission should not be confused with the Government's and Minister's power to remit punishment which, as I have already explained, is being restricted. At the moment, remission for good conduct amounts to one-quarter of the sentence so that a person, in respect of whom the court had recommended 40 years, would be eligible to earn ten years remission bringing the minimum period that he would have to serve down to 30 years.
The remaining provisions of the Bill largely relate to technical or procedural matters which I think might be left to discussion on Committee Stage. There are, however, one or two other matters to which I would like to refer.
We are making it clear by virtue of section 3 (2) of the Bill that murder to which section 3 of the Bill refers — formerly known as "capital" murder — or attempt at such murder will be distinct offences from "ordinary" murder and attempt and that it will be necessary, in order to convict a person of such offences to prove mens rea, i.e. necessary guilty mind, in respect of all the ingredients of the offence. In this respect we are following the judgment of the Supreme Court in the Murray case in 1976 — reported in the 1977 Irish Reports.
What this provision means is that a person charged with, for example, the murder of a member of the Garda Síochána acting in the course of his duty will not be convicted of the offence unless it is proved that he knew that the victim was a member of the Garda Síochána acting in the course of his duty or he was reckless as to whether the victim was or was not such a member. Paragraph (b) of section 3 (2) will, except to the extent that the Bill provides otherwise, ensure that the law and procedure generally relating to murder will apply to murder to which section 3 of the Bill applies. This will preserve, for example, all the usual defences to murder which the law allows and will also ensure that there will be a power of arrest without warrant for the offence.
Deputies will see that quite a substantial number of consequential amendments are proposed to the Defence Acts. Those Acts, which contain the code of military law, have quite a number of provisions dealing with the trial of offences against military law by courts martial and it is necessary to amend some of these to bring those Acts into line with the provisions of this Bill. This is because a person subject to military law who commits an offence against the ordinary criminal law of the State is thereby also guilty of an offence against military law. This rule has the result that the provisions of the Defence Acts relating to ordinary murder and purely military offences, and to penalties, are necessarily complicated: hence the detailed consequential provisions of the Bill.
The main thing to note is that the sentence of life imprisonment is being substituted for the death penalty for the purely military offences. I should point out that at present the death penalty is not a mandatory sentence for these offences. A court martial may award a lesser punishment. It is not necessary therefore — indeed it would be totally inappropriate — to impose a mandatory minimum period of imprisonment in substitution for the death penalty in these cases. Where, however, a person subject to military law is tried by court martial for treason or murder to which section 3 of the Bill applies, such as murder of a member of the Garda — as he could when on active service — he will be liable to exactly the same penalties as he would be if tried by civil court and the same provisions relating to the restriction of the powers of commutation or remission of sentence as well as of parole will apply.
A Cheann Comhairle, on a personal note I would like to express to this House my pleasure in being the Minister for Justice who will strike the sanction of the death penalty from the Irish Statute Book. Throughout my career in this House, I have always hoped that I would be a participant in securing the abolition of this penalty from Irish law. I know many Members of this House join with me in welcoming this historic legislation which exchanges tools of dubious value for tools of true protection and defence against those who would threaten the lives of gardaí and prison officers.
I commend this Bill to the House.