Criminal Justice (Abolition of Death Penalty) Bill, 1984: Second Stage (Resumed).

Wednesday, 13 February 1985

Seanad Eireann Debate
Vol. 107 No. 3

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Question again proposed: “That the Bill be now read a Second Time.”

Mr. Durcan: Information on Patrick Durcan  Zoom on Patrick Durcan  I was referring to the point of view expressed by some that there are certain circumstances where the State may take human life, circumstances related to the State's protection. I now want to come to the other point of view which, in essence, is [288] the view expressed by the former Minister for Justice in this House in 1981 when he referred to the sacredness of human life. That point of view reflects the acceptance that society cannot ever evaluate the individualism of any person, and society cannot make any decisions which will ultimately adjudicate on the motive of any person in doing a particular thing or in committing a particular act and that the one sanction which society should not adopt is the death penalty for some of the reasons outlined by Senator Ross but for other reasons also. The view is that, whereas society should take a sanction, it should not be the death penalty but some other sanction such as the 40 year minimum sentence envisaged in the 1981 Act and referred to again today by Senator Ross.

I mentioned earlier how one's point of view on this matter can change. The best way I can indicate how one's point of view can change is by quoting from a book written by Lord Denning, former Master of the Rolls in Britain, called The Family Story. My quotation is from pages 164 and 165. This quotation also reflects my own view, which is a changing view because this is a difficult subject upon which to be definite. Lord Denning says under the heading “Is capital punishment right or wrong?”:

I suppose that I am one of the few judges left now who have passed sentence of death. I have on many occasions, using the formula: ‘You shall be hanged by the neck until you are dead; and may the Lord have mercy on your soul.’ The Chaplain says, ‘Amen.’ It is never done now.

Is capital punishment right or wrong? In giving evidence before the Royal Commission on Capital Punishment I was in favour of it — for murder most foul. That was many years ago now. Some years afterwards I changed my mind. It is not a legal question. It is a question of policy. It is an ethical question. Is it right that we, as a society, should do a thing — hang a man — which none of us individually would be prepared to do, or even to witness? On such grounds I changed [289] my mind. Parliament was right to abolish capital punishment. It was right to abolish flogging. Those days are past.

Those views expressed by one of the most eminent judicial personages of the common law world are views which I share and in great measure reflect my attitude on this matter.

I will conclude by reiterating that the attitude of this party is that the death penalty should be abolished in principle. The fact that this party might not favour this Bill at this time — a Bill identical in terms to the Bill we introduced three years ago — does not reflect any change on the part of this party. It simply reflects the fact that this party were elected with the Labour Party in November 1982 to govern. In governing it is our job to introduce legislation in various areas. We have indicated recently what our programme of legislation is for this Dáil session. That programme of legislation is not going to be interfered with.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  The House discussed this question twice before, in 1964 and again in 1981. I made it clear on both those occasions that I was in favour of the abolition of capital punishment. In what I said on those occasions and in what I propose to say today my views are consistent. I am certainly in favour of the abolition of capital punishment. I said then that I was in favour of it for crimes which could be described as domestic crimes, the ordinary crimes that take place in a country, that is not in any unusual circumstances, any unusual political circumstances or unusual military circumstances. Even for such a crime as ordinary murder — if one can describe murder as ordinary — I would not favour capital punishment.

The question is whether we are in what can be regarded as normal circumstances at present. Virtually nobody is against capital punishment in time of war. Every country in the world in such circumstances accepts capital punishment without question, except pacifists who do not agree with the taking of life in any circumstances. I am not a pacifist. I believe that people are entitled to defend [290] themselves and their families. I believe we are entitled to defend our country and, in certain circumstances, the killing of somebody can be justified. Because there are extreme circumstances, and because life is in danger, and the whole life of the country is in danger, one cannot persist in the normal view that capital punishment should not be tolerated.

What we have to consider at present is whether in this country at the moment we have what could be regarded as normal conditions, whether we are a country with normal political conditions, or whether we are in fact more akin to a country which is at war. We are all aware of the very very serious position in the North of Ireland. We are aware of the widespread violence there. We are aware that life is being taken for political motives by various paramilitaries very regularly.

Much of this violence has spread down here. There have been casualties in the Garda and in the Defence Forces. It can be argued that at present this country is in a state of almost being at war, very near to a state of war. The position could deteriorate and reach a stage which could be described as a state of war. In these circumstances there would be no question that capital punishment would be tolerated, much as people disliked it. It would be tolerated and, in these circumstances, this is an inappropriate time to bring in a Bill of this kind.

Senator Ross mentioned that the trend in most countries in the world at present is away from capital punishment. The proviso is always made in these countries that any moves that have been away from capital punishment do not include a situation of war time conditions and, to that extent, we could say that we would be quite happy to go along with the international trend if we had the same conditions that exist in the countries to which he refers.

In 1964 we agreed to certain exceptions from the abolition of capital punishment, in relation to reason, to the murder of gardaí, prison officers, certain offences against the State, and the killing of a head of a foreign state or of a diplomat. These [291] exceptions were regarded as very unusual and very unlikely. Can it be said in support of this Bill that the danger has passed and that the kind of situations that were reserved have been shown not to have taken place and not likely to take place? In fact, the opposite is true. Since that time several gardaí have been murdered. A diplomat in this country has been assassinated. There have been serious prison disturbances, although no fatalities actually. Abroad, several heads of State were assassinated. The arguments for retaining the exceptions as set out in the 1964 Act have been strengthened rather than weakened and, if anything, that Act has been seen to be a reasonable one in all the circumstances.

I am conscious of all the arguments that have been mentioned in previous debates and in the speeches here today against capital punishment and I agree with most of them. I do not support the concept of an eye for an eye. I do not accept the concept that, because murder is a serious, abhorrent crime, the way the State should retaliate is by committing a statutory murder. I am conscious of the finality of capital punishment, that it cannot be reversed and that many innocent people have been executed. I am conscious of the fact that it is an extremely inhumane operation, something that degrades all those who have to implement it. All of these are coercive arguments. All of them would in normal circumstances make an overwhelming case for the abolition of capital punishment. Certainly when one considers them, it makes it very difficult to oppose this Bill.

Fianna Fáil believe that this is a highly inappropriate time to introduce this Bill. Senator Ross says we should not adopt that line, that we should not adopt the line that this is not the right time, that this merely means we will always be saying the right time has not come. That is not a valid argument. I have set out the circumstances in which it would be the right time, when we did not have a situation in this country bordering on a state of war. When that has gone, then it will [292] be the appropriate time. I hope this House will be able to support a Bill of this kind in the not too distant future. I hope I will be here to support it but, on this side of the House, we are unable to support this Bill at present.

Mr. Robb: Information on John DA Robb  Zoom on John DA Robb  I take it that no one else wishes to offer to speak this evening, because I would prefer to reserve my right to speak on the next occasion. Is that the situation?

An Leas-Chathaoirleach:  Normally the debate goes from the Government side to the Opposition side.

Mr. Robb: Information on John DA Robb  Zoom on John DA Robb  I support this Bill which Senator Ross is sponsoring. I was interested in the speeches made by Senator Ryan and Senator Durcan. They have both shown how hard it is to be definite with regard to the measures to be taken in the case of capital crime and also our attitudes to capital punishment. We heard Senator Ryan pointing out that he supported the abolition of capital punishment in the past and why he felt it was important that it should at least be retained on the Statue Book at present.

Although I take a contrary view, I respect the integrity of his position on this and I can understand the reasons he has outlined for his position. Nevertheless I was more than convinced by the argument put forward by Senator Durcan in relation to the need to look at it, and re-look at it, and to contemplate the possibility of a change in attitude in a very difficult area where it is difficult to be definite. I come from a part of this island, as Senators well know, where there has been a considerable number of murders and assassinations. Three people in my own home were assassinated.

Prisoners held for long periods in Northern prisons have found that time has affected their attitudes and has brought about a feeling or a desire to repent, shall we say, what was done, to go out into society with a new motivation and try to redress some of the misery they wrought [293] by their assassinations. I am thinking in particular of a young loyalist prisoner who has admitted in correspondence that he is in there for murder. I am also thinking of a young republican. Great work has been done in recent times by prison chaplains who deal with men who in the solitariness of prison have had to confront themselves. As their act rises in their consciousness eventually to haunt them as they are no longer able to maintain the justification they had when they performed the original killing they are seeking some way out. Through the chaplains, the priests and the parsons who have a deep, deep and sensitive undertaking of what has taken place, these people have had a change of heart and a renewal in their spirit which makes them genuinely repentant and gives them the potential to emerge back into society again as useful citizens.

I know that that is not the position of all people who commit murder. Should we not address ourselves more to the psychological and redemptive aspects of the rehabilitation process of those who, for one reason or another, either political or criminal, have committed murder? I think in particular tonight of Mrs. Cobb who lost her husband and who wrote to the assassin of her husband offering her forgiveness. That is a very hard thing for people to understand who have not suffered in a similar fashion. Nevertheless it does allow us to hope. It also allows us to bring into the debate the concept of mercy, of forgiveness, of an understanding that it is possible for people to repent and, if and when they are liberated from imprisonment, to hand back to society something which it lost as a result of their actions.

We must now consider those actions. Let us look at the social side first. Increasingly in Ireland young people who have gone through the whole process of education find themselves cornered particularly in our larger towns and cities. They are cornered without power to participate in society. They are cornered without employment and without an opportunity to do creative work. In short they see the development of space technology and an [294] opening up of the heavens while, at the same time, where they live they feel the social space squeezing in all round them and they lash out to deal with this frustration gap between the expectation which has been kindled by the new technology, and particularly by the media, and the reality of living in their own communities. They try to crash through this frustration barrier. Twice in the course of this year, when this frustration led to these youngsters trying to crash through the barriers, they were shot dead.

It seems likely that murder and associated crimes will be on the increase rather than on the decrease. Will they be adequately dealt with through the threat of death rather than addressing ourselves to those things which are involved in promoting the hope and prospect of life? Civilisation in my book is the affirmation of life from the very moment it starts until death, even though we live in the knowledge that life as we know it comes to an end some day. The question I would ask both of the State and of the individual involved in the mutilation or murder of others, or in the capital punishment of others, is when we violate the integrity of another human being, even when we have the sanction of the law behind us, and we are legitimised in our action by the State, do we not also diminish ourselves in the act or in our association with the act?

If we take it at individual level, it is inevitable that because we have a shared humanity an act of violation results in feelings of guilt which many of us can suppress by many devices, not the least of which is that we are doing it on behalf of the State in which we live, in the uniform of the State which we serve, or because the forces to which we are opposed are anti-social, anti-national, and so on. We cling to any falsification of the other man's humanity that we can justify any act of violence towards him. Now granted that legitimacy is important, at a time like this in a country riven by dissension both national and social, but that legitimacy begs certain other questions as to what it is based on and to what extent all the citizens have reasonable [295] access to the opportunity which exists within the State which seeks legitimacy for acts involved in the keeping of law and order.

We must then ask ourselves how do we deal with any guilt once it arises in our consciousness and we are no longer able to suppress it. This certainly applies to the man in prison, but equally it arises in a collective sense in a nation or society which seeks a solution to the problem of violence, particularly violence ending in the killing of members of that society.

If we could be certain that capital punishment would be a sufficient deterrent to killing and murder then the retention of capital punishment would seem to me to have some justification. I do not think that people can argue that the retention of capital punishment has produced the effect desired.

Let us now make a distinction between murder and killing. Senator Ryan said that it was right that one would, in a final analysis, defend oneself at one's front door. Certainly there are few of us who would not take that point of view. One has to make the distinction between defending oneself with a view to a defence of life in the home and undertaking a deliberate premeditated act to ensure that the attacker is killed in the process of one's defence. It makes all the difference in the world in my opinion in dealing with an attacker and, if necessary, wounding him in order to defend life in one's own home or community and making a determined effort to ensure that there is absolutely no possible way in which the attack can be continued by ending the life of the attacker. As somebody has said already, it is a very final act. It is difficult, as I have already mentioned, to redeem such finality, certainly adequately, in this life although I believe it is possible.

I would ask Senators to consider also the point that Senator Ross made about the need to incarcerate anyone for 40 years — the mandatory sentence. Anyone who has read about the imprisonment of Rudolph Hess in Spandau Prison must surely be appalled that [296] in spite of the heinous crimes to which he gave his name that 40 years on an old man is still isolated, almost in solitary confinement, for crimes against humanity. Have we not got enough humanity to recognise that there comes a time when enough is enough and the man should be set free? If anyone feels, as I do, that Hess should have been set free, I believe it would be inconsistent to say that we can support the death penalty.

The perspective of treason, one of the items mentioned in the Bill, changes as time moves on. What was treasonable in the Ireland of the 1912-22 period would certainly not be treasonable today, and for very good reason. What is treasonable in concept in Northern Ireland at this moment I hope will not be treasonable in years to come. It comes back to Senator Durcan's point that it is difficult. I accept that to be definite. We may be dealing with changing perceptions of changing times. Nevertheless, it is very important that we do not react to the increasing violence by which we are surrounded by retaining this force which the State in the past has deemed necessary because I believe it is inevitable in the changed social climate of today that execution is bound to lead to reaction. We are going through a period of fundamental change. We are entering a new era. People are no longer prepared to do as they are bid, so to speak. There are new social groupings. There is a demand for a new social community politic. We must look at the problem carefully and be certain, if we are going to retain this Act, that we are not retaining an Act which will alienate further many sections of the deprived, underprivileged, frustrated people who now live with so much dissatisfaction and confusion in our towns and cities.

There is another matter that I wish to raise. In a country without a death penalty the onus is on the State to promote life and prevent death. Let us be clear that once this death penalty goes it has a significant impact on the effect of hunger strike. I mention that so that we do not overlook it. I mention it particularly [297] because of the very painful process of rethinking that I had to do at the time of the Republican hunger strike in the North. At that time I held that while there could be no more justification for hunger strike to the death there were nevertheless political, psychological and social reasons for it, that no democratically elected Government should cave into the threat of blackmail by the threat of death. The dilemma was that we did not know until it was too late whether we were dealing with death or not.

Once it becomes clear that one is dealing with death then in a country without a death penalty the onus is clearly on the Government and on the Establishment to promote life and prevent death. Just as I understand my obligation as a doctor in a casualty department when confronted by a person who has affirmed that he wants to leave this earth through suicide I would have the option to decide whether to save a life or let that person have his choice. It has that aspect which we need to think about, particularly in Ireland.

We have heard the history from Senator Ross of the gradual dilution of the death penalty in Ireland in the 1964 debate, the 1981 debate and how the 1981 debate failed to come to fruition. When we look to the future, if we have the death penalty it will rarely be carried out. If we do not have a death penalty and murder occurs — remember murder is the premeditated, unlawful killing of one human being by another — we will be forced to address ourselves, perhaps more imaginatively than we have in the past, to the restructuring of Irish society, so that a pro-life philosophy, a pro-life experience is something that can be shared by all. We will be looking much more acutely, particularly as a result of the Northern experience and as a result of the experience of the chaplains in the prisons, to how we can help people who have committed the most heinous crimes to live with themselves as best they can and to come out with a message to the rest of us about what it is necessary to do and why they were placed or allowed themselves to be placed in the position [298] that they committed the crime which they will carry as their own sentence to their graves. I have no hesitation in supporting this Bill. I trust that the remarks which have been made about the untimeliness of it will be put in some perspective. Some of us, perhaps, do not have enough time to look at our timing and when we get an opportunity and are asked if we wish to support something which seems to be right we take it on the spur of the moment. Perhaps that sounds naive but nevertheless it is a fact of life.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Gabh mo leith scéal. Is beag nár theip orm bheith i láthair. I will not launch into a long, emotional and detailed description of what happens when capital punishment is actually carried out. In some ways some of the arguments in favour of the retention of capital punishment are a little like the arguments used in favour of nuclear deterrents. It is useful, we are told, but we will never use it, but there is an apparent need to preserve the ultimate deterrent in case we might need to use it at some unforeseen circumstance in the future.

On the last occasion on which capital punishment was debated in this House Senator Magner had in his possession very gruesome and gory accounts of the actual execution of a number of persons. They were Home Office descriptions and they were quite gruesome, gory and unpleasant, but they adequately described and necessarily so, what is done to people when we choose to terminate their lives as a form of punishment. We choose to terminate their lives. It is funny the way we develop a separate vocabulary. We do not say that we kill people. We say that we execute them. Various paramilitary and terrorist organisations prefer to use the word execute rather than the word kill because, apparently, they believe it conveys a certain legitimacy or an appearance of legitimacy on them.

It is no harm to talk about and think about the whole concept of capital punishment, because capital punishment and the movement to abolish it has been one of the great marks of civilisation. It is not [299] a long time in human history since a huge range of crimes carried capital punishment. There is a story in my family about an ancestor of mine whom, when we are disposed to be benevolently disposed, is alleged to have been executed for his faith, but in less benevolent moments, on less benevolent interpretations, it is alleged the same individual was executed for stealing a sheep. We prefer to accept the former, but the latter clearly underlines the extent to which capital punishment was used in a most barbarous way in previous centuries. One of the horrifying examples of human history is the ingenuity that mankind has actually used to develop methods of killing people as a form of punishment, the long list from beheading people, to garroting people, to hanging people, to shooting people, to, at one glorious stage, 2,000 years ago, feeding them to the lions, to the more recent high technology uses of various lethal gasses of one kind or another.

There is something inherently repulsive about some things that seem to be associated with capital punishment. One is the whole religious ritual that is associated with execution, a religious ritual which is visible to us since the United States in their lack of wisdom have chosen to reintroduce capital punishment as part of their penal code. Repulsive. I would not deprive somebody of a religious presence but there is a certain appearance of complicity in the presence of a strong religious element. Even more difficult to accept is the medical ritual that is associated with capital punishment, the fact that members of the medical profession apparently participate to the extent of being available to confirm that a person is dead.

The role of medicine and of the medical profession is one of saving life. I am not casting aspersions on individuals in this, but there is a question about the whole idea of having members of the medical profession available to preside over the ritual killing of a member of the human race. There is a certain element of the ritual killing involved in capital punishment, [300] of the expiation of sin through the punishment of a sinner.

There is another element that has surfaced again in the United States, the ghouls and the nasties who turn up in great numbers enthused at the idea of witnessing an execution. I do not know how one can argue that something which assembles large numbers of the most wounded and sick in a society to see what is happening in some way benefits or helps the society.

Capital punishment is gruesome, it is vulgar and it is a most reprehensible crime against humanity. It would be simple to dismiss it in those sort of terms, but rational, concerned humane people sometimes argue in favour of capital punishment. It is a fact that probably in every country in western Europe and in North America public opinion is very strongly in favour of capital punishment. I suspect the only coherent homogeneous cultural groups in the whole of western Europe who may be opposed to capital punishment are the Catholic population of Northern Ireland and the Basque population of Spain. I suspect every other group would probably indicate a majority in favour of capital punishment. I know it is true in this country, I know it is true in Britain, I gather it is true in France, I know it is true overwhelmingly and tragically in the United States.

It is a bit pretentious very often to describe ourselves as legislators, because whatever else I have done in this House I have done very little legislating, but we call ourselves legislators so we will use the term for the moment anyway. Those of us who claim to be legislators have got to face up to that particularly disturbing fact that any movement to abolish capital punishment will be singularly unpopular.

One could speculate fruitfully on the extraordinary anomaly of a country which worked itself up into a frenzy of pro-life enthusiasm being at the same time in favour of capital punishment. I am not so foolish or sufficiently dishonest as to pretend that the two positions are absolutely mutually exclusive, but it is [301] interesting that we can have people in a frenzy in defence of human life and at the same time often in an equal frenzy in favour of disposing of people whom they regard as no longer being worthy of human life.

The more rational arguments and the most widely used are the ones of deterrence. I do not believe any two people who disagree on the question of deterrence could not satisfy each other whether they were right or wrong. There is so much evidence, most of which is based to some extent, greater or lesser, on supposition, on assumed connections between facts, that nobody would be convinced by it. This attempt to argue great principles from sociological conclusions is very much in evidence in Ireland today on another issue which faces the country. The attempt to draw one conclusion from the fact that certain things happen together is sociologically very suspect, and even if it is given the imprimatur of the entirety of the Roman Catholic hierarchy drawing a sociological conclusion is a difficult thing to do, and it cannot be proven either on the question of deterrence or on the question of certain other matters that are shortly to come before the other House.

It is true that I can say from my experience that I do not believe in general that deterrence really works. I can say from my experience of dealing with people who come into contact with the law that they do not have the remotest idea of what the penalty is. The children who steal cars are not aware that the penalty for stealing a car is five years in jail whereas it was five months one year ago. I do not believe that the people who rob banks know that the penalties for firearms offences have been doubled in the last ten years. For all I know a considerable number of the people who are involved in murder do not know that capital punishment does or does not exist on two sides of the Border. It is an interesting anomaly that those of us who, very often in self-righteous terms, denounce the administration of justice north of the Border singularly omit to advert to the fact that north of the Border they do not [302] have capital punishment and south of the Border we retain it, usually to deal with the same people who are involved in similar crimes north of the Border.

I do not accept that there is any convincing argument that any penalty is a deterrent. If you can have an insight into the mind of somebody who commits the sort of serious offences that draw down capital punishment it would be difficult to determine whether 40 years or 30 years was a greater deterrent than execution. It is difficult to see into another person's soul. Another issue which is very alive in our society now is the extent to which one can read into another person's mind and motives. It is virtually impossible to be sure whether a mandatory sentence of 40 years or execution is more or less a deterrent. I shall return to the mandatory sentences later. It is true that the standard alternative to capital punishment is life imprisonment. This can vary from country to country and from individual to individual, from society to society and from political environment to political environment. In the case of Nelson Mandella, it appears to mean the rest of his life in prison. In our society it means in more human terms somewhere between six and ten years. This is a much more reasonable approach.

I cannot find much in the argument for deterrence that would convince me. It would be dishonest of me to say that if somebody could produce suddenly a mathematically inescapable conclusion which proves that capital punishment was a deterrent it would change my mind. I will not be convinced if I do not think the deterrent value could in any way justify the fundamental immorality involved in the deliberate decision to take another person's life. Another argument that is used and which needs to be taken quite seriously and approached conscientiously is that the presence on our Statute Book of the possibility of execution is a support for our security forces, that they feel the need for this support, that they feel that they will be more exposed without capital punishment.

The then general secretary of the Association of Garda Sergeants and [303] Inspectors — he has since returned to police work — Derek Nally — was quoted on a number of occasions as saying that he was worried that if capital punishment was abolished there would be an inclination on the part of some members of the Garda to resort more to on-the-spot executions. He said he felt that that was the experience of other countries. This is a frightening reflection on the gardaí. Mr. Nally felt that members of the security forces would in a very profound way feel more at risk, more vulnerable, more threatened and much more less supported by society, if capital punishment were to be abolished. The circumstances in which members of the security forces are killed are such that it would be inhuman not to feel outrage, anger, and an enormous amount of sympathy for the victims and their families.

Outrage and anger in particular, are not good bases for logical and rational decisions. Outrage and anger are not good bases for determining whether a particular proposal is right or is wrong. Legislators have — again we have heard about this so often — to examine an issue and judge it on its merits in the light of their conclusions and assessments and, God forbid that I mention it too often, in the light of their own conscience and conclusions as to what is proper in certain circumstances.

Therefore, whatever the sense of loyalty we have to the security forces, there are and there should be more fundamental questions that deserve to be approached. A loyalty to any arm of the State should not allow us to be deterred from doing what we believe to be fundamentally right or fundamentally wrong, whether that loyalty be to the security forces or to a political party which people are affiliated to.

On this issue of support for the security forces, one of the more extraordinary aspects of the current provision for legalised killing is that it includes the prison staff. There was a scandalous murder of a prison officer last year. It was wrong and [304] I hope the people who were responsible will be punished.

Debate adjourned.

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