Wednesday, 6 November 1963
Dáil Éireann Debate
This comparatively short Bill proposes to abolish the death penalty,  except for treason, for certain offences of a military character and for offences which, in the Bill, are called capital murders. Penal servitude for life is being substituted for the death penalty in ordinary murder cases. In addition the Bill provides for the abolition of the doctrine of constructive malice and for some consequential amendments arising out of the abolition of the death penalty.
The text of the Bill has been available since before the summer recess. When published it had what one might call a quiet reception. I think it is reasonable to say that this indicates that the Bill is generally in accord with public feeling, and that its provisions can be considered in an atmosphere free from the emotional tension that the issue of capital punishment has often evoked in other countries.
From ancient times the punishment prescribed by law on conviction for murder has been death. If the jury convict an accused person of murder, the judge must, except where the accused is under 17 years of age, pronounce the sentence of death. He has no discretion to impose any other sentence. The jury may return a verdict of “guilty but insane” where the accused person establishes to their satisfaction that he was insane, within the meaning of the rules governing insanity as a defence in criminal cases, at the time he committed the crime. In certain cases of serious provocation, the jury may return a verdict of manslaughter instead of murder. In infanticide cases, the District Court may alter the charge of murder to one of infanticide when returning the accused for trial; where the District Court does not do so, the jury may return a verdict of infanticide or concealment of birth.
The death penalty is prescribed for the following crimes as well as for murder: treason, certain military offences under the Defence Act, 1954, piracy with violence and the wilful  killing of a person protected by the four Geneva Conventions of 1949; in the latter case, there is provision for the alternative sentence of penal servitude for life. No one has ever been charged with any of these offences since the inception of the State.
During the period 1946 to 1962 inclusive, 82 murders were committed. Of the 73 persons arrested, 34 were found insane and unfit to plead; seven were found guilty but insane. Sentences of death were passed on 18 persons, including three women. Three of the men were executed—one in 1947, one in 1948, and the third in 1954. The remaining 15 persons had their sentences commuted to penal servitude for life. The longest term of penal servitude served by any of these 15 persons was 11½ years, the shortest three years. The average term was six years.
Up to the 18th century, capital punishment was carried out all over the world for a wide variety of crimes. Some of the capital offences would nowadays be regarded as comparatively minor. The executions were often accompanied by torture. The movement towards the amelioration of punishments and the ultimate abolition of the death penalty commenced about the beginning of the 18th century. During that century, the number of crimes which attracted the death penalty was considerably reduced.For example, the Offences Against the Person Act, 1861, which applied to this country, reduced the number of capital crimes from over two hundred to murder, treason and piracy with violence. In other countries the death penalty was abolished completely, usually after a period in which sentences were not carried out or in which the law allowed imprisonment as an alternative.
The death penalty has been abolished in Austria, Denmark, the Federal Republic of Germany, Finland, Greenland, Iceland, Italy, Netherlands, Norway, Portugal. San Marino, Sweden and Switzerland. In Belgium and Luxembourg, the law still provides for capital punishment  but it is not implemented. Apart from one exceptional case in each of these two countries there has been no execution since 1863 (Belgium) and 1879 (Luxembourg).
There are five member countries of the Council of Europe, apart from Ireland, which retain capital punishment: France, Greece, Spain, Turkey and Britain. In Spain, and in Greece, except in the case of a crime against the integrity of the national territory, the law provides for an alternative penalty of death or imprisonment. In France and Turkey, though death is the only penalty prescribed, the judge can always, indirectly, by invoking extenuating circumstances, have recourse to imprisonment instead.
The Northern Ireland law is the same as here; in Scotland also the death penalty is retained. In England and Wales, the law was amended in 1957 to abolish the death penalty for all murders except five cases of “capital” murders, namely, murder in furtherance of theft, murder by shooting or explosion, murder to evade arrest or to escape from legal custody and murders of police and prison officers. The 1957 Act also provided that a person convicted of non-capital murder should remain liable to the death penalty if he had been previously convicted of murder.
These categories of capital murder were obviously selected from the point of view of protecting society against professional criminals, especially those carrying arms, and were designed to deal with the particular circumstances obtaining in England. However, the discrimination between capital and non-capital murders has been criticised as being illogical and as enabling some persons convicted of the most brutal murders to escape the death penalty. For example, a petty and unpremeditated theft committed at the scene of a murder can mean the difference between murder and capital murder. A husband can be hanged for shooting his wife dead in a fit of temper but not if he kills her by poison administered over a long period.
I should like now to turn to the arguments usually advanced in support of the abolition of capital punishment. It is said that capital punishment tends to degrade society by undermining the value of human life; that it is not a peculiarly efficient or a unique deterrent to murder; that, with its marked emphasis on the retribution element in penal philosophy, it distorts the proper aims of punishment; that it destroys the possibility of reforming the offender; and that it destroys the possibility of rectifying error; innocent men have been hanged.
The case against abolition consists mainly in a rebuttal of these arguments.The question as to whether and to what extent capital punishment is a deterrent to murder is of particular importance and it might be thought to admit of a clear answer having regard to the research which has taken place on this subject on a world-wide basis over a long period. This is not so. Statistics produced of the effect on homicide rates in the various countries of the abolition of capital punishment are apt to be misleading, mainly because it is almost impossible to draw valid comparisons between different countries owing to differences in the legal definitions of crime, the practice of the prosecuting authorities and the courts, et cetera.
The matter is further complicated by the fact that in most countries where capital punishment has been abolished, statutory abolition has come after a period when the death penalty was in abeyance, and this creates the problem of what date should be taken as the dividing line. A British Commission on capital punishment reached the general conclusion that there was no clear evidence, in any of the figures they had examined, that the abolition of capital punishment had led to an increase in the homicide rate, or that its reintroduction had led to a fall.
After a careful review of all the evidence they had been able to obtain as to the deterrent effect of capital punishment, they considered that prima facie the penalty of death was  likely to have a stronger effect as a deterrent on normal human beings than any other form of punishment and there was some evidence—though no convincing statistical evidence— that that was in fact so. But this effect, they said, did not operate universally or uniformly, and there were many offenders on whom it was limited and might often be negligible.
They stressed that it was important to view this question in a just perspective and not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty. A recent Council of Europe survey, referring to a comparison made of crime figures before and after abolition, said that the abolition of capital punishment had not been reflected in any European country by an increase in the number of crimes formerly punishable by death.
On the other hand, the view has been expressed that it would be reasonable to suppose that the deterrent force of capital punishment operated not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community a deep feeling of peculiar abhorrence for the crime of murder. However, from the practical point of view the value of capital punishment as a deterrent to potential murderers must be relatively slight so far as this country is concerned in view of the fact that since the end of the war only one in twenty-four of those charged with murder, and only one in six of those sentenced to death for murder, were in fact executed, and that there has been no execution for nine years.
Having regard to these considerations, the Government came to the conclusion that in normal conditions there is no case for retaining capital punishment except as a deterrent, and that there is no reason to suppose that an increase in murder cases in this country would follow abolition, contrary to the experience of other countries which have abolished it. As I have mentioned, most other European countries have abolished or virtually abolished the death penalty.  The Government considered, too, that it was undesirable that the solemn formula of the death sentence should continue to be pronounced, when it was followed so frequently by commutation of the sentence. Moreover, the present is an appropriate time to abolish capital punishment inasmuch as no execution has taken place here for over nine years and the matter has not been the subject of public controversy. However, the Government are of opinion that these considerations are not fully valid in regard to certain offences and that in these particular cases the public interest requires that the death penalty be retained. It will be accepted, I think, that persons who murder from political motives will not be deterred by the prospect of imprisonment. Accordingly, the Government decided that treason and any form of “political” murder must continue to be punishable by death. Certain capital war-time offences already provided for in permanent Defence Forces legislation are also being excepted from the abolition of the death penalty.
One of these capital offences— mutiny with violence—could also occur in peace-time but here again imprisonment would offer no deterrent to potential mutineers. As regards murders of members of the Garda, it must be borne in mind that in this country the police are unarmed and have a special claim to whatever additional protection the law can give them by providing the deterrent of the death penalty against the violent criminals they have often to contend with. As regards the murder of prison officers in the course of their duty, the type of criminal likely to be involved would not be deterred by the threat of a prison sentence.
In general, it seems to me that three courses of action were open to the Government when considering this issue. As so often happens, each of the possible solutions was not entirely free from disadvantage. The Government could have decided to take no action but to let the death penalty fall into disuse in much the same way as Belgium and Luxembourg did. Such a  decision would have involved trial judges in continuing to pronounce an empty formula when passing sentence in murder cases. Moreover, I think it is important that the Oireachtas should lay down clearly in what circumstances, if any, the death penalty is liable to be carried out.
Secondly, the Government could have abolished the death penalty for all crimes, whether military or political or otherwise. For reasons I have mentioned, the Government are not prepared to go this far at present.
The third course of action open to the Government, and the one decided upon, is based on their view of what is requisite for the maintenance of public order and the security of the State, and I hope it will be acceptable to the general body of public opinion. I know that some people will urge sincerely that the death penalty should be kept for particularly heinous murders such as murders by poison, sexual murders, murders of children and so on.
The difficulty is that there is such a great variety of circumstances in which murders may be committed, ranging from the most blameworthy to those having some extenuating or mitigating aspects, that it is impossible to list satisfactorily in a statute those murders which are so heinous as to merit the death penalty. Many countries have attempted to list these circumstances by law so as to establish precisely what constitutes the kind of killing which should be punished by death. I think it is true to say that in every case all these provisions have given rise to serious anomalies in operation. There is also the aspect that in many cases where the public have been initially shocked by the circumstances of particular murders the mental condition of the perpetrators has been such that they have been found not to be criminally responsible.
The proposals in the Bill represent the Government's opinion of what is necessary at present to maintain law and order and the security of the State. It may be that a situation will develop in the future—and I hope it will— which will enable the Government to reduce the categories for which the  death penalty is being retained without any risk to the national interest, or it may be—thought I consider it unlikely in peace-time—that it may be necessary to reintroduce the death penalty for certain offences. It is on this practical basis that the Government presents its proposals for the consideration of the House.
Section 4 of the Bill provides for the abolition of what is known as the doctrine of constructive malice. The doctrine means that in the case of an accidental killing which takes place in the course of committing a felony—at any rate a felony involving violence— or other offences, such as escaping from lawful custody, the fact that there is no malice aforethought is not sufficient to keep the crime outside the definition of murder. This was, at any rate, what the doctrine of constructive malice was taken to mean originally. The scope of the doctrine has been narrowed by judicial decisions over the last hundred years and there is a certain amount of disagreement as to what the precise extent of its present application is. The doctrine was abolished in England and Wales under the Homicide Act, 1957. It never applied in Scottish law. The Government have come to the conclusion that there is no case for retaining it any longer.
Some Deputies may be wondering why the Bill does not touch on another related subject to that of capital punishment which has been somewhat in the news in recent years, that is, the question of insanity as a defence in murder cases. We are not dealing with that problem in the Bill because it is a question affecting criminal proceedings in a wider sense—not merely in murder cases. The question of amending the present rules—which are known as the M'Naghten Rules—in the light of modern medical and legal thought on the question of insanity, and the question of making legal provision for the doctrine of diminished responsibility as was done in England and Wales under the 1957 Act, are at present under examination, together with a number of other aspects of the law relating to mentally-ill prisoners. Any changes in the present law in this  regard which may be found to be necessary will be incorporated in a separate Criminal Justice Bill in due course.
Mr. M.J. O'Higgins: I wish to make it clear at the outset that the arguments which I propose to make in connection with this Bill are personal ones. We in the Fine Gael Party have considered this Bill carefully and have come to the conclusion—I think rightly —that a Bill of this nature is one on which individual Deputies must be guided entirely by their own convictions and their own conscience. Certainly so far as the Fine Gael Party are concerned, we are leaving this Bill, if it should be voted on, to a free vote of the Deputies of our Party, all of whom are entitled to express their own personal views and personal convictions in regard to it.
I believe this is one of those subjects about which many people feel most strongly and, as in the case of many subjects on which people do feel strongly, often they are not entirely prepared to see the other person's point of view. This Bill is one which we must consider in the context of the society in which we live. In Ireland, we have a nearly entirely Christian country and a very largely Catholic country and it seems to me that, having regard to that fact, it is true to say that people living in this country recognise the value and sanctity of human life probably more than any other communities which are not as Christian or as Catholic as we are.
The Minister has told the House what the proposals in this Bill are. It abolishes the death penalty except in the case of, first, treason; secondly, capital murder, which is then subdivided into three different categories; and thirdly, offences for which the death penalty is already provided in the Defence Forces Act of 1954. Capital murder, as defined in this Bill, falls into three different categories: first, the murder of a Garda or prison officer acting in the course of his duty;  secondly, murder in the course of furtherance of offences under particular sections of the Offences Against the State Act, 1939; and thirdly, political murder which is the murder of a visiting head of State or representative of a foreign Government. These are the various categories in respect of which it is proposed to retain the death penalty and, as the Minister has already mentioned, one of the sections in this Bill proposes to abolish the doctrine of constructive malice.
The Minister has given in some detail and very accurately an idea of the pros and cons with regard to capital punishment. It is a question which has been argued out in a number of countries over the years. In this country also, it is a question which has from time to time been debated by different sections, different societies and different interests. Conflicting views have been expressed and—I think the Minister indicated this also when he was speaking — they have been expressed with equal sincerity and equal force, both by the exponents and the opponents of the idea of capital punishment.
A number of people will feel that the more or less accidental compromise which we have reached in this country, whereby capital punishment is retained but very seldom used, is in some ways an ideal arrangement to have come to. There is a lot to be said for that point of view but it seems to me that once a Bill which proposes to abolish capital punishment, even in a limited way such as this Bill does, comes before us, then it is not sufficient to say that we should hold on to what I have described as the accidental compromise at which we have arrived. It is necessary for Deputies on all sides of the House to make up their minds in regard to the merits of this Bill and in regard to the question of keeping or abolishing capital punishment.
The Minister has, as I say, gone through the arguments advanced down through the years on both sides and it is no harm to mention them again as I see them. Other Deputies will have their own points of view and some of the arguments mentioned on one side  or the other may weigh more fully with individual Deputies. Those who are in favour of the abolition of capital punishment have argued down through the years that it is not a necessary or an effective deterrent. They point to the fact that murders are committed in countries which have capital punishment and they argue from that that the mere fact that murders do take place shows that capital punishment has not succeeded in acting as a deterrent.It is often argued that for many people life imprisonment would be a far more effective deterrent than capital punishment. It is argued that where murder is committed impulsively or committed by an unbalanced person who might not, under the M'Naughten Rules to which the Minister referred, be found to be isane, it is unlikely that the question of the punishment, whether it is capital or otherwise, would be taken into consideration by the murderer and that consequently in those cases the value of capital punishment as a deterrent is at a minimum.
As the Minister pointed out, a long list of countries can be quoted where capital punishment has either been entirely abolished by statutory enactment or has fallen into disuse. As against that, those who favour the retention of capital punishment rely to my mind principally on its deterrent value and they claim that even though it may not be an absolute deterrent, at least it is a more effective deterrent than any other form of punishment. It is true to say that the British Royal Commission which inquired into capital punishment some years ago—I think it was in the late 1940s or the early 1950s—did hold that capital punishment was likely to be a stronger deterrent than any other punishment for normal persons. It is quite clear, and even those who wish to retain capital punishment for murder do concede, that in the cases of what I have described as impulsive murder or murder by unbalanced persons who might not be classed as insane, the deterrent value of capital punishment is reduced to the minimum.
Those who favour the abolition of capital punishment frequently advance the argument that one of the duties of  the State is to uphold the value of human life and that the operation of capital punishment tends to lower the value in which human life is held by the people in the State when it is put into operation. There are of course arguments against that made by those who wish to maintain capital punishment.They point out that while it is true that the State must recognise the sanctity of human life, it is equally true in so far as the individuals in the State are concerned and that the person who has committed deliberate murder has straightaway failed to recognise the sanctity of human life and has offended in that respect.
Another argument—and this is certainly the argument which weights most heavily with me—put forward by those who wish to see the end of capital punishment is that capital punishment is an irrevocable penalty, that once a man has been executed for a crime, if it subsequently is shown he was innocent, no redress can be made. It is an irrevocable penalty and a penalty which is irrevocable such as capital punishment should be imposed only by a tribunal which is in itself infallible and no matter what care might be taken in our courts to secure that there will be no miscarriage of justice, none of us, not excluding the judges on the bench nor the men sitting in the jury, is infallible. That is a very strong argument and a very sound argument in favour of the abolition of capital punishment. It is one that has always weighed with me, which more than any other has made up my mind for me in connection with this Bill and which makes me say to the Minister that as far as I am concerned I support the idea of the abolition of capital punishment contained in this Bill and that I would go a lot further than the Minister.
Once the Minister has set his feet on this path, he should walk the whole way. He should not do as he has indicated the Government intend doing, considering the matter further with a view to abolishing capital punishment in the categories for which it is retained at the moment. My inclination, if I were in the Minister's shoes, would be to go the whole hog  now, but to do that in the knowledge that if circumstances in our society were so to alter as to make it desirable that capital punishment should be reintroduced, that could be done by an Act of this Parliament.
I mentioned already and the Minister also mentioned that capital punishment is being retained in this Bill for certain classes of murder. I think that in addition to coming to a decision on the general question as to whether they favour capital punishment or its abolition, in relation to this Bill, Deputies are faced with two further questions. The first is: is it justifiable to retain the death penalty in the various cases in which it is being retained; and secondly, is the Minister right in following the British practice in regard to the murder of a member of the police force or a prison officer, without taking any account of the question of motive?
The cases for which the death penalty is being retained are treason, capital murder, political murder and certain offences against the Defence Forces Act, 1954. I can see that in cases of treason, political murder or those coming within the Defence Forces Act there is a case and I think it is the case which the Minister relied on for placing them in a different category from what might be described as the individual murder. A case can be made, and I think it is right to make it, that the safety and security of the State is involved in these murders which relate to treason, political murders, and so on. I think that that is a fair argument and it does place such murders in a different and distinct category from the case of individual murder. It is fair to say that once that distinction has been made here, that you can logically, and with reason, place such murders in a category separate from individual murders, it is not unreasonable to say that there should be a different approach to the punishment called for. But, I think, at that stage, all the logic in this Bill seems to break down.
The Minister or the Government seem to be accepting in principle in the Bill—and it seems to be running through it—that the retention of capital  punishment is not an effective deterrent in cases of murder. Once the right of the State to take human life by imposing capital punishment is accepted, and once the heinousness of deliberate murder is accepted, there is a logical reason for holding that the State should use its authority to impose for murder the punishment which is likely to prove most effective as a deterrent. I think we then reach a stage where the question I have posed in relation to the Bill and to the retention of capital punishment for specific types of murder amounts to whether or not capital punishment is an effective deterrent. It seems to me that what the Minister has done in introducing this Bill is to say “yes” and “no” to that question.
The Minister seems to me to be saying that capital punishment is an effective deterrent for capital murder and political murder but that it is not an effective deterrent for non-capital murder. I do not see the logic behind that and that is one of the reasons why I stated my own view. My own personal inclination would be to go the whole hog and abolish capital punishment completely.
The other question I asked was whether we were wise in following the British precedent so far as the question of murder of a member of the Garda or a prison officer is concerned, that is, murder of a Garda or prison officer in the course of his duty. The Bill simply provides for the retention of capital murder in the case of a Garda or prison officer acting in the course of his duty. The motive of the killer is not to be taken into account at all as a distinguishing factor between the murder of a policeman or anyone else. The only distinguishing factor, according to this Bill, will be the occupation of the murdered man. It seems to me that is bound to give rise to all sorts of anomalies.
One of the daily newspapers, the Irish Independent of Saturday, July 30th, 1963, in a leading article on the subject put the point that I have in mind extremely well when it asked why it should be more heinous for a burglar to cosh a policeman who surprises him, rather than a nightwatchman.  That is exactly the type of anomaly which will be created under the Bill as it stands at the moment. It seems to me that the Minister would do better if he were to go the whole way in the Bill at this time and abolish capital punishment completely. However, as far as the Bill goes, I support it and if the Minister were to bring in a more extensive measure, I would support it also.
Mr. Tully: I should also like to make it clear, as the previous speaker did, that the views I put to the Minister are personal views because my Party have not had an opportunity of discussing the Bill. We will do so to-night and then I assume the viewpoints they will put will possibly be the same as Deputy O'Higgins put or they may, as they have traditionally been opposed to capital punishment, decide to take the line which I intend to take here.
I oppose completely any idea that capital punishment under any circumstances is right. I think it is entirely wrong for this State under any guise, or for any excuse, because I believe there is no reason for it, to take away life. I think it has been proved fairly effectively that it is not a deterrent. The man or woman who is going to commit a murder seldom, I suppose, worries about what is going to happen afterwards if he or she is caught. For that reason I think it is not a reasonable thing at all to suggest that the question of what is going to happen them should be considered a deterrent. I know that many people in this country are prepared to say that it is right to hang people for various things. I heard someone suggest the other day that people should be hanged over the turnover tax. I would not agree to hang somebody even for that. Let us pause for a minute to consider what actually happens when somebody is condemned to death. He is kept in prison for a period and then executed. It is on record that even at some of the more recent executions which took place in this country the unfortunate wretch was dragged screaming, praying or cursing to the scaffold. While the Minister for Justice, who then was not Minister, or the judge who condemned  the accused person, or the whole community or everybody who is responsible for the law in this country may have slept and eaten well on that particular day and night, I think, if they stopped to think what they were actually responsible for, they might not have slept or eaten so well.
I honestly believe it is a debasing thing that the State should take unto itself the right to take away a life which it cannot give. When you consider that other countries, which have not the reputation for being so Christian as we are, have already abolished capital punishment, I think that we have got to consider very deeply its complete abolition here. The Minister, in reply to a Parliamentary Question a few days ago, gave the number of people who were charged with and tried for murder, the number of people convicted and the number of executions carried out. To all intents and purposes, with one exception in 1954, nobody has been executed here since 1948. It would appear then that there is no capital punishment carried out, despite the fact that about eight people had been convicted of murder.
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