Criminal Justice (No. 2) Bill, 1990: Committee Stage (Resumed).

Thursday, 5 July 1990

Seanad Éireann Debate
Vol. 125 No. 15

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SECTION 3.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Amendment 7a to section 3 has been ruled out of order. On the last day the House had disposed of all the amendments to that section and had entered upon the section. The Senator can put forward the amendment on Report Stage.

Amendment No. 7a not moved.

Question proposed: “That section 3 stand part of the Bill.”

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Is section 3 agreed?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  No. I have never seen a line on an Order Paper which states that all amendments are completed, but I accept your ruling. On section 3——

[1800]An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  We had entered on the section the last day.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I apologise. On section 3, the first question I would like to ask the Minister — pointing out in the process that yet again we do not have the Minister for Justice here which it is particularly difficult for us as the person who is deputising is a particularly amiable individual, but he will have to live with the consequences of being landed with the job — can he tell me why the murder of a member of the Defence Forces does not have the same status as the murder of a member of the Garda? Senator Costello and I have spent a lot of time pointing out the inanities, the contradictions and the sloppy phrasing of section 3. It is not that I believe anybody should spend 40 years in jail — far from it — or indeed 20 years, but I would love to understand the logic of this section, because I do not believe there is any logic. It was taken out of one piece of legislation and slipped into another, and nobody thought about it. There are implied priorities here which have to do more with the vocal nature of the Garda representative association than they have with any sort of logic. Why should it be a different crime to kill a member of the Garda in the course of his duty, because it could well be an armed member of the Garda who would be murdered. It has nothing to do with carrying weapons. Quite scandalously, many members of our Garda now have to carry weapons because of what is happening in our society. I am not arguing about that. Could somebody explain to me why it is different to murder a member of the Garda who is carrying a firearm and is using a firearm than to murder a member of the Defence Forces who is carrying a firearm, who is not carrying a firearm, or is carrying an unloaded firearm? Why are the Garda more important than the Army?

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  In relation to section 3, there are major problems. We commended the Minister on section 1 in the context of his very statement that no person shall suffer death for any offence. [1801] It is in section 3 that there is an extensive withdrawal from that position. We have here the introduction of this new crime which, as yet, has no name and the Minister seems to be unhappy about the name that was suggested but is not suggesting that any name to be attributed to it. That is should go unnamed in the range of offences is quite unusual. It refers to certain sections of the security forces, to the Garda and to the prison officers, but as Senator Ryan said, it does not refer to the third arm of the security forces, that is, the Army. It also refers to offences under the Offences Against the State Act, most notably treason and the activities of unlawful organisations and offences against representatives of foreign Governments. We have pointed out already in relation to the amendments that it is one thing to specify arms of the security forces that are concerned with maintaining the institutions of the State, but to go into another area entirely in relation to exceptional or special legislation, such as the offences against the State, treason and a very ill defined section in the Offences Against the State Act in relation to unlawful organisations and their activities etc, is a different matter. That should have been excised from this legislation in order to confine it to the representatives of the security forces who have a duty to maintain the institutions of this State. It would be much cleaner and much better legislation if the definition was kept to that. In relation to the definition of “prison,” it includes internment camps. I really think it is quite exceptional and unsatisfactory——

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Hear, hear.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  ——that we should have internment camps in time of peace. We discussed whether we were in a state of war but we were never too clear about it even at the end of the discussion, when we consider what the Offences Against the State Act actually states. It would be most appropriate if the Minister excised that particular reference from this legislation. It has no benefit for a country like ours that presents itself as a very civilized [1802] country operating under Christian ethics and morality, and with a good international name in the area of civil rights, that we should retain a provision for internment camps in peace time.

In relation to the definition of “prison officer” that, to my mind, includes the kitchen sink. The Minister the last day suggested that it merely referred to the prison staff and to the Army when it was acting as a back-up in support of prison officers. The wording of the definition is so wide that obviously it can be interpreted — and would be interpreted by any court, I have no doubt — in a much broader fashion to refer to the Minister, to civil servants who have a role in the custody of persons who are detained, to members of the prison staff, such as chaplains, who are paid by the authorities, the visiting committee who regularly visit and have a custodial function, and to teachers, and so on. It can be extended to a very broad range. Irrespective of what the Minister said, I am not prepared to accept that the actual wording is as narrowly defined as the Minister stated the last day. That is a particularly sloppy wording. Just because it is in the 1964 Act is no reason it should be retained in this legislation. It was unfortunate then and, I would say, it is even more unfortunate now.

On the other hand, having given that extensive definition to the prison officers there is no such definition of the Garda. People who are concerned with the Garda in the operation of their functions are not covered in this legislation unlike the prison staff in the context of the prison officer or the prison setting. That is an anomaly. The greatest anomaly of all in this legislation is when we are discussing the Army backing up the prison officers. That is what is concerned in this section — having duties relating to the custody of a person in a prison. Why is the same phrase not attached to the definition of the Garda that “the Army in support of the Garda when they are backing in the course of their duty”? Why is the Army not so protected when it is the third arm of the security forces? A further anomaly is that protection is given [1803] for foreign statesmen, for members of a foreign Government or the diplomatic representatives, but there is no such protection for members of our own Government or our own diplomatic representatives. That is an anomaly this legislation has not addressed.

For all these reasons this section is very unsatisfactrory. It is a mish-mash which simply restates what is in the 1964 legislation. That is not good enough. I am very disappointed that having got to what is the essence of what is a very good piece of legislation, with very good underlying principles it should be spoiled by retaining all that unnecessary baggage from the 1964 legislation.

Minister of State at the Department of Foreign Affairs (Mr. Calleary): Information on Seán Calleary  Zoom on Seán Calleary  I understand that quite a lot of what has been spoken about here this morning was mentioned last week. Senator Ryan and Senator Costello may well have a point. However, I can only repeat and I apologise to the Senator if this was said last week, that when it was decided in 1964 to abolish the death penalty as the mandatory penalty for murder per se it was decided that it should be retained for certain types of murder which were described as capital murder in the Criminal Justice Act, 1964.

The reasons for so doing have already been explained. As the House is aware, what we are trying to do here is simply to replace the penalty for these capital offences with the mandatory prison sentence. They open up the whole question as to whether offences which up to now have been capital offences should no longer be in that category, or indeed vice versa would simply open up an endless area of debate. In the end it might do no more than delay the abolition of the death penalty, and none of us would like to see that happen.

If the Senator's argument were to be accepted and we define the murder of soldiers as coming under section 3, then it might be asked why not include civilians who might assist the Garda and so on? Senators Costello and Ryan mentioned [1804] this. The law has been settled for the past 26 years on what is a capital offence. I believe at this time it should not be changed other than with regard to the penalty.

The question was raised also by both Senators as to why soldiers may, in certain circumstances, be deemed to be prison officers for the purposes of murder under section 3, but not be similarly regared when they assist the Garda. The reason is that the Army, when called to assist the Garda, act in a secondary role. A soldier in such circumstances does not take on the duties and the responsibilities of a garda. The Army's function in the joint Garda-Army operation is to provide an armed presence as back-up to the Garda. In a prison situation the role of a soldier and a prison officer may, in certain circumstances, be less clearly demarcated. Indeed, in terms of a military prison, soldiers would perform the full range of duties of a prison officer.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I would like to quote from what the Minister of State said at the end of the Second Stage:

Reference was made that the Minister for Justice was unable to remain here for the full Second Stage debate. I must convey his regrets to the House and indicate that he will be available for the full Committee Stage.

I do not think the House should be getting assurances of that sort which are just blindly forgotten one week later. I was not here for the speech of the Minister of State, Mr. Smith, I only read it afterwards. I welcome Minister Calleary to this House. He is as efficient a Minister as we get and he treats this House extremely seriously. I do not want him in any way to take this as insulting, but I am a little tired of the Minister for Justice sending in a different Minister every week. I do not believe every Minister is fully briefed on the Committee Stage of this Bill.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I do not wish to cut across the point of view you wish to make known here, but it is accepted now that the Minister for Justice is not available. [1805] The Minister of State is here to take Committee Stage; we are on section 3 and the House has so agreed. Consequently, there cannot be any justification for departure from Committee Stage.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  It is not accepted by me.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  It is accepted by the House. There has been more than reasonable latitude given to Members to express their disappointment at the fact that the Minister for Justice is not here. That has been dealt with and we are on Committee Stage. The Minister of State is here. We are dealing with section 3 of the Bill and I must ask Members to confine themselves to the section.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  What I was saying was not contesting that the Minister was here. What I was saying — and I have every right to say it — was that we were given an assurance that the Minister would be here. He has not turned up. I would like to know the reason we were given these assurances.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  It is not my responsibility to give such a reason and I must again remind the member that we are dealing with section 3 of the Bill. The relevance of the assurance or otherwise is not part of Committee Stage or section 3.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Perhaps I could ask your guidance, a Chathaoirligh? When an assurance of this sort is given to the House, which it was, and it is down in black and white, what remedies are open to the House?

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I have no control over who attends this House. I must point out I have control over what we are dealing with at present, and that is Committee Stage, section 3.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  The three people on the back benches——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I am going to insist [1806] that the Senator addresses himself to section 3 or else resumes his seat.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I bow to your ruling, but it is only fair that it should be registered that that assurance has been broken and ignored on every occasion since it was made.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I would like to ask the Minister present if he has the capacity or the will to accept any amendments? I do not wish to reopen a lot of contentious material, but I would like to establish that point. If the Minister or the Minister's advisers were satisfied——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  We are dealing with section 3. I should not need to repeat myself, surely, as often as I have done, to point out that what the Senator is addressing at the moment has no relevance to section 3 of the Bill.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I am afraid we have a difference of opinion——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  There will be opportunities on Report Stage for amendments. You can take the opportunity then if you so wish, but in the meantime we are confined to dealing with section 3.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  The point I am trying to establish is that there are a considerable number of amendments related to section 3.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  They have been disposed of. You have been notified in connection with amendment No. 7a.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  All right.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have rarely heard a more ludicrous explanation of something in my life than the Minister's attempt to justify the absence of reference to the Defence Forces in section 3. First he said we had a point. If we have a point that the Defence Forces should be covered by the same legislation and by the same protections as the Garda, particularly when the Defence Forces are acting——

[1807]Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I said you may have a point, Senator.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Perhaps the Minister can explain to us why it should not be done.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I tried to explain. Obviously, if the Senator does not want to accept the explanation there is nothing I can do.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am very keen to accept the explanation, given first of all the likeable nature of the person who is giving it. I do not wish to keep the House a minute longer than is necessary, but the point is that section 3 is fundamentally flawed. I do not think there should be more than two sections in this Bill. The rest of it is a load of rubbish designed to pacify certain forces. You can keep a person in prison for life for murder. It is a matter for the Government of the day to decide when a person is released. There is no obligation on them to release him ever. Everything from section 2 onwards is a load of political whitewash to cover up and to pacify one very vocal lobby.

There is another very important security force in this country, the Defence Forces, who are unheard of most of the time and are taken for granted most of the time. Because they did not have the political clout to go around the country demanding the retention of hanging, their interests are not protected by this Bill. If this Bill protects interests, and if it is meant to do what it is supposed to do, the Defence Forces should be covered by it. Otherwise, the absence of the Defence Forces simply explains what we all know and that is that this is a load of political whitewash to pacify the Garda Representative Association. The Defence Forces should be covered by section 3. To suggest that there is some sort of identical role being played by the armed forces outside Portlaoise or on the walls of Portlaoise Prison from that being played by the Defence Forces when they are supporting gardaí in a Garda operation is nonsensical. That is the first thing.

Secondly, on section 3 (1) (d) — murder committed within the State of a [1808] Head of a foreign State for a political motive — can the Minister or his Department tell me how would the State prove a political motive? Do they really think that some idiot is going to assassinate a Head of State and then get up in court and say, “I committed this for a political motive” and guarantee himself 40 years in prison. Does he really think that some idiot is going to assassinate a Head of State and then get up in court and say he has committed this offence for a political motive and guarantee himself 40 years in jail instead of the normal term of life imprisonment? It is a meaningless phrase in the context, put in for God knows what reason, and further underlines the sloppiness of the drafting of section 3. How can it be proved that somebody murdered a visiting Head of State or a visiting diplomat for a political motive is that person was not foolish enough to admit it? Is the Minister saying we are going to have assassins going around the country assassinating people and then happily saying they did it for a political motive so they can end up in jail for 40 years, with limited remission and so on? It is a meaningless phrase.

Finally, to return to the last section— the definition of a prison officer — I want to put something on the record because given that the Minister of State who was here last week is not from the Department of Justice, it is understandable that he was misinformed. I mentioned then that words in legislation mean what the legislation means, not what we as ordinary people might choose to believe they mean. I want to quote from the Firearms Bill as passed by both Houses of the Oireachtas. In section 4 of that Bill is a definition of “firearms.” It says: “In the Firearms Acts, 1925 to 1990, firearms means...” and there is a list of things. Paragraph (c) says “ `firearms' means a crossbow.” Words do not mean what they mean; they mean what the legislation says they mean.

To say that all reasonable people understand what is meant by “prison officer” is meaningless because no reasonable person would believe that a [1809] crossbow was a firearm. It is illogical, nonsensical and meaningless. Therefore, to tell us that the definition of a prison officer does not include the Minister for Justice and officials of his Department is nonsenscial. It says and I quote:

A prison officer is any person having duties in relation to the custody of a person detained in prison.

This, means we have the ludicrous situation where murder of the Minister for Justice is a more serious offence than murder of either the President or the Taoiseach. That section 3, defining special kinds of murder with special kinds of penalties, is nothing more than a charade which has far more to do with the politics of pacifying the Garda representative association than it has to do with any sort of logic or policy.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I agree wholeheartedly with what Senator Brendan Ryan has said, particularly the definition of a prison officer. He has unearthed the Humpty Dumpty syndrome in legislation, that words mean, as Humpty Dumpty said, what I want them to mean, no more and no less. This is very clearly illustrated in Senator Ryan's reference to the Firearms Act.

There are six amendments — and I do want to return to this point — I am not going to argue them all because anybody who is interested in the substance of the argument can read what Senator Ryan and I had said the last day.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I should point out at this stage that there is a tendency to enter into the area of repetition both by Senator Ryan and yourself. This has been extensively debated.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I was correcting the previous Minister, who erroneously corrected me last week about the definition of a firearm and said I was wrong. On the question of political motive, there is no amendment on political motive that I can see.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I was referring to [1810] the prison officer definition; not political motive.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  If I may continue, I think you will be able to see the relevance of what I was trying to say. I had just said that I did not intend to rehash the arguments because anybody who was interested could read last week's report. The reason I was asking the Minister whether he had the capacity or the will to accept amendments was that (a) he appears to find some measure of agreement between Members on this side of the House who put down amendments and (b) as you have pointed out, it is possible on Report Stage to reintroduce amendments. I was simply seeking to discover whether, in the absence of the Minister for Justice, a person of ministerial rank deputising for him if convinced by argument on this Stage or on the next Stage could or would accept the inevitable logic and accept the amendment.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  It is a hypothetical question and until such amendments are put down on Report Stage there can be no presumption at this Stage that they will be accepted.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is a hypothetical question, but it is one that naturally arises and it is important to know. There is very little point in putting amendments down if you know automatically they are going to be thrown out.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  The Senator knows quite well the procedure of this House and Senator Honan also knows that hypothetical questions are not easily answered at any stage.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Thank you, a Chathaoirligh. The greatest injustice done to this Seanad was the report on the number of words all of us spoke because every week we have repetition and the lads like to hear themselves saying the same thing over and over again. Senator Ross, with the greatest respect, yesterday evening created a furore over a Minister being present whom you said, was not relevant [1811] to the legislation we were taking; some hours later you made great speeches with another Minister who was not relevant; and now you are back on your hobby horse again.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Is the Senator referring to Senator Ross or the Cathaoirleach?

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The Cathaoirleach. I am addressing section 3 of the Bill.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  On a point of order, what section is this?

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Section 3.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Somebody said that all we need are the first two sections of the Bill. They also wanted to know the position in the case of the murder of a garda, a member of the Government, a prison officer or a member of staff. Reference has been made to our peaceful and Christian nation. Yes, we have such a nation but still there are murders and we have to deal with them. The penalty is death until this legislation is enacted. We welcome the fact that the death penalty is being abolished. Having listened to some of my colleagues on the other side of the House, are they worried in their bellies that a penalty of 40 years is too much for murder?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Could Senator Honan explain the relevance of the human digestive tract to section 3 of the Bill?

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Go away to the university and stay there.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Senator Honan, without interruption. No question can be put to the Chair about such matters.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I am confused by Senator Brendan Ryan for whom I have the greatest respect — I do not mind the other two. Why is this section causing him trouble? If he is prepared to state that the first two sections are sufficient why does a sensible man like Senator Brendan [1812] Ryan not let us get this important legislation out of this House and stop talking simply to get a number of words on some record which the electorate will see? That is what the Senators are at. I have taken their measure.

The amendments have been dealt with and we are on the section. A question has been asked as to how one could prove political motive for the murder of a Head of State. If somebody is convicted of murder, that is sufficient, and the penalty then is 40 years. A Chathaoirligh, thank you for your protection — I am a bit surprised, but thanks anyway.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  You will find protection in strange places all the time even from me.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  A strong case has been made here for the inclusion of the Defence Forces in the special category. The Defence Forces are a very important organ of the State. They are charged with the defence of and have a special role to play in the democratic institutions of the State. The defence of the State is a vital factor in our democracy. Therefore, they should be included in the special category and I agree with my colleagues on this side who make that suggestion. I also agree with it as my colleagues have accepted that there should be a special category for those who attack persons charged with defending the institutions of the State whether gardaí, prison officers or members of the Defence Forces.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I agree entirely. I had an amendment to that effect which was ruled out of order that at least in the context of the Gárda Síochána it would mean a member of the police force and include a member of the Defence Forces acting in support of the Garda Síochána. I trust the Minister has authority to take amendments on Report Stage because that will be a specific amendment then. I think we would all agree that if there is going to be a particular offence provided for in the context of some members of the Defence Force, we should cover the entire [1813] Defence Forces, that is, Garda, prison officers and the Army. Otherwise, we are creating an anomaly.

The Minister has given no good reason why a certain protection is given to the Garda, and to prison officers and is not given to the Army, even when the Army are acting in conjunction with the Garda. He says this is a secondary form. What does he mean? This is playing with words. Are the Army operating in Portlaoise, for example, operating in a secondary or in an equal fashion? I would say that the prison staff have control of the prison and that the support staff are the Garda and the Army. To say that when the Army are operating in the context of prison, that is in conjunction but when they are operating in the context of support for the Garda it is secondary, is not good enough.

There are a couple of points in my remarks that the Minister did not refer to. He did not explain how he managed to satisfy himself in relation to the anomaly vis-á-vis our own Government and diplomatic representatives and those of a foreign State. How is it that that anomaly is allowed to remain and what is the justification for it? Again, he has not addressed the question of internment camps. How can we accept in this day and age legislation that provides for internment camps and a penalty and offence are specified which will cover that? I am not satisfied and I would like the Minister to comment on it.

The Minister has not seen fit to accept any name for this offence. Is it to go through its history as the crime with no name, the offence with no name or the nameless offence? What will it be called? Will the Minister give us any good reason why he or the Minister for Justice is not prepared to accept a name for this offence?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Throughout the debate I have indicated that I think the Minister has got into some difficulties on this legislation because he has attempted to create gradations of murder and that that is wrong. It is inconceivable that the battering to death of a small child should [1814] be considered as less serious than the shooting of a member of the Garda. However, having said that, I wish to place on the record of the House that this does not mean any lack of respect or understanding for the role played in our society by a very fine police force and a very fine Army.

I accept what Senator Ryan said that probably half of the reason for these excrescences in the legislation is a result of a political lobby. I quite understand that the gardaí and their families are apprehensive. It is a human thing to feel these emotions. I received briefing documents from these organisations and I am perfectly certain the Government have been lobbied hard. The Garda have every right to lobby but I think their argument is faulty. However, I wish to place on the record my considerable esteem and respect for the Garda and the Army and the prison officers and I would not like it to be thought that because I took a different view on this matter in some way I held them in less regard than I do.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  The problem with this section is that it is based on a totally erroneous presumption. That is, quite simply that by dishing out sentences of 40 years you are going to protect the gardaí in some way. I do not believe for one moment that a mandatory sentence of this sort gives any additional protection to the gardaí in the course of their duty. I do not believe it acts as a deterrent any more than the death penalty. I do not think the Minister has any evidence — I would be interested if he has evidence— to the effect that dishing out a heavy sentence of this sort will actually protect the gardaí. What Senator Ryan said is right, it is more a sop to recognise their role in society.

I endorse what Senator Norris said that the Garda should be recognised as doing a thankless job very, very well but I do not think that forcing the courts to impose this sort of sentence gives any protection to gardaí or prison officers.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I must again interrupt the Senator and point out that he is [1815] dealing with penalties. They arise under section 4 and we are dealing with section 3.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I am dealing with the categories of persons.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Yes — referring specifically to penalties.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Yes, that is right.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  And penalties, minimum period of imprisonment in the case of murder.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I will deal with it on section 4.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I would prefer if the Senator would do that.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Section 3 (1) (d) refers to “murder committed within the State for a political motive.” I find great difficulty with that simply because in this case a political motive apparently makes the crime in some way a great deal worse. In other words, if a Head of a foreign State is killed for a political motive, the person convicted is subject to a 40 year sentence and, therefore, it comes into this category whereas if he has not murdered for a political motive he gets possibly a lesser sentence. I find it difficult to reconcile the grading of murdering for a political offence here with the fact that a political motive in extradition cases is a defence.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  Again, all I can state is that I understand a lot of the ground covered this morning was covered on the last occasion. I would just say the Defence Forces are covered where they perform duties similar to a prison officer.

May I repeat what was said the last day in relation to the matter of a name. I certainly appreciate that the proposers of the amendment which I understand was defeated the last day were attempting to [1816] introduce a term which they hope would distinguish the particular type of murder dealt with in section 3 from “ordinary” murder. I understand the term “aggravated” was used. Unfortunately that is not appropriate in the context in which the Senators seek to use it. All I can do is repeat what has been said the last day.

Going back to the question of political motive and in particular the question by Senator Ryan, it is fair to say that motive can be gauged by the circumstances and the various facts.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Like what?

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  The type of process is part and parcel of any criminal trial. The Senator must agree with me, it would be very unusual that a member or head of a foreign government could be killed here by mistake or even could be murdered here by accident. It would be quite obvious in the context of the trial why that individual was murdered. It would certainly come out at the trial.

I do not understand the difficulties the Senators seem to find with this Bill. May I refresh their memory somewhat, particularly Senator Ryan, Senator Norris and Senator Ross? I go back to 30 October 1987, and the Criminal Justice (Abolition of the Death Penalty) Bill, 1987 in the Seanad as initiated. It is almost a carbon copy of what we have here. If it is wrong today and if there are so many flaws in it today, how can three individuals, for whom I have a lot of respect, now say that what they themselves put on the floor of this Seanad and about which they were very vociferous is flawed? I have a recollection that there was even a small walk-out about it because it was not even considered. I find it rather strange. A lot of the things that have been found frivolous and the various other descriptions that were given to them are in a Bill to which three noted Senators, for whom I have a lot of respect, put their names.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  My name is not on it. The Minister is making a mistake.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  It says, “Presented by [1817] Senators P.N. Ross, David Norris, Brendan Ryan, Joe O'Toole and John Robb — 30 October, 1987.”

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  On a point of information, that Bill lapsed with the last Seanad election. There is a Bill on the Order Paper which does not have my name on it.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  That may well be and the Senator may well have learned a lot in the meantime. I accept that. All of us do learn. I learn from what I am hearing here today.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  It is an argument which neither the Minister nor the person who was here last week is prepared to accept, which is, that that section is rubbish. If it was in a Bill that I had introduced I would happily admit it and withdraw it.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  The Senator says it is rubbish. That is fine.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I accept that it is rubbish and it should be withdrawn. The arguments are quite clear. I wish the Minister would accept the argument. We do.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I am afraid I will not not accept the argument. I am quite happy with legislation that the Senator and all of us want to see. I do not really understand the quibbles that we have heard here this morning. All of us want to see, once and for all, the abolition of the death penalty. There is an opportunity here now and we should get on with it.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  May I say——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I want to point out at this stage that I have allowed very considerable latitude this morning. There has been quite an amount of repetition. Much of what has been contributed as part of a section 3 debate has been discussed during the debate on the amendments. I find it undesirable and unhelpful to the process we are engaged in if we continue in this form.

[1818]Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I have not repeated myself on any point and I asked the Minister a number of questions. There are two he has not referred to in his reply. That is really all I am going to refer to. I am not engaging in dispute or in discussion.

I want to ask the Minister two questions: first, why internment camps are retained within the terms of this legislation and secondly, why members of our own Government are not covered by the legislation when members of a foreign government and members of a foreign diplomatic service are covered? I am glad the Minister accepts the principle that there should be a name on this particular offence. The Minister was not prepared to accept my original amendment and the name I was giving it there in the context of aggravated murder and attempted aggravated murder. I will have an amendment on Report Stage and I hope he will be happier with that one.

Mr. O'Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  The Minister has been very patient. I would concur with the views the Cathaoirleach has expressed. There has been a lot of repetition. The points raised here in the past hour were raised on the last occasion. Maybe the answers given were not satisfactory to the Senators but they were given by the Minister. I made certain comments the last day and used certain adjectives that seemed to aggravate Senators on the other side. The longer the debate goes on, gives credence to what I said on the last occasion, that we are dealing with somewhat frivolous amendments.

My colleague, Senator Ryan, has said we should have just the two sections and delete the rest of the Bill. On the other hand he has decided to move certain amendments. That creates an anomaly itself. Again, I ask the other side to cease the repetition. Every question that has been raised here was raised on the last occasion. I sat through the whole debate and the answers were given. Maybe they were not what the Senators desired but they were given and should be accepted or else we will have a vote on it.

[1819]Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  We all want to see the Bill passed, if possible, even today and I do not think this side wants to be obstructive. The Minister is quite right. There have been a succession of Bills. I am not quite sure where my distinguished colleague, Senator Ross, got the legislation from. Perhaps he wrote it all himself. I do not know and I do not honestly mind very much.

One thing is perfectly clear and it is implicit in what the Minister said, the Government snitched a Private Members' Bill basically because there is a dog-in-the-manager attitude and the Government would rather collapse than allow Private Members' legislation to be initiated in this House because they treat the Seanad with contempt. If they want to avoid this what they should do is consider allowing the democratic machinery of the Oireachtas to operate properly so that——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  We are on section 3.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  ——we on section 3 we would not have this kind of dispute. I am answering the Minister's point and if the Minister was relevant I must be relevant as well. If Senator Ross had been allowed to introduce his own Bill I have no doubt there would not be a section 3 because he would have graciously——

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Section 3 is what we are dealing with in this Bill now.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is what I am dealing with, too, a Chathaoirligh, with the greatest respect.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I fear that Senator O'Donovan is new to this House. There are more routes or more options available to one in a parliamentary Chamber than saying “yes” or “no” to large chunks of legislation. One of them is actually to try to make sense of it or to try by reasonable argument to persuade those who introduced it that sections are illogical, inconsistent and liable to create problems later on.

[1820] I find unacceptable the implication that concern that the Defence Forces should be as well protected as the Garda is somehow either frivolous or repetitious, coming from people who will bang drums about the Defence Forces and who nearly banged me because I said some things that were taken to be slightly disparaging of the Defence Forces some years ago. I wish they would put their money where their mouth is. If they are so good at standing up for the Defence Forces and the security forces they would accept that there is no logical reason why murder of a garda should be different from murder of a member of the armed forces, if they want this sort of nonsense. All I have tried to do throughout this discussion is to suggest to the Members opposite and to the Government that we are entitled to expect reason and logic in our legislation. When I get irrational, illogical, sloppily drafted legislation I am going to oppose it.

As regards the little red herring about the previous Bill, it is quite simple. I do not think I have some sort of monopoly on wisdom. In most properly functioning parliamentary democracies Governments do not think they have either. It is just in this particularly creaking parliamentary democracy that Government seem to feel that to accept an argument from the Opposition is somehow such a loss of face that they cannot possibly do it.

May I say in that regard that there is always in debates like this an enormous amount of talk about the institutions of the State and the people's loyalty to them.

I would like to repeat what I have said on many occasions that my own view on the institution of the State is very similar to that of Deputy Jim Kemmy when he was in the Dáil and supporting the Coalition Government, which is, that my loyalty is critical and constructive and liable to be withdrawn at any time. I do not think the institutions of the State function particularly well. The argument is about section 3 and the illogicalities, the inconsistencies, the sloppy drafting, the things that are omitted and the things that [1821] should be in it. Things are in it that should not be in it and there are definitions in it that are entirely meaningless. The Minister for Justice is quite clearly covered by this legislation, the Taoiseach is not. That is not because the Government wanted it but because they drafted it sloppily. They just took a whole section out of an Act. The Army is left out because in 1964 nobody thought that anyone would be killing soldiers because of the state of the country then. They forgot the Army because the Army does not have a vocal, highly politicised, highly organised representative body speaking up on their behalf. That proves not so much that the Army should be in but that this sort of legislation is sloppy. Life imprisonment [1822] is life imprisonment and that is enough. We should not have any more.

That is all I am going to say on this section. It is sloppy, illogical and meaningless. It should have been withdrawn and redrafted by the Government.

Mr. O'Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  I move that the question be now put.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  I accept the motion that the question be now put. Is section 3 agreed?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  No.

Question put: “That the question be now put.”

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Votáil.

Bennett, Olga.
Byrne, Sean.
Conroy, Richard.
Dardis, John.
Fallon, Sean.
Finneran, Michael.
Foley, Denis.
Hanafin, Des.
Haughey, Seán F.
Honan, Tras.
Keogh, Helen.
Kiely, Dan.
Kiely, Rory.
Lanigan, Michael.
Lydon, Don.
McCarthy, Seán.
McGowan, Paddy.
McKenna, Tony.
Mooney, Paschal.
Mullooly, Brian.
Ó Cuív, Éamon.
O'Donovan, Denis A.
O'Keeffe, Batt.
Wright, G. V.

Costello, Joe.
Norris, David.
Ross, Shane P. N.
Ryan, Brendan.
Ryan, John.

Question declared carried.

Section put and declared carried.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Amendment No. 8 has already been discussed with section 2. Is amendment No. 8 being pressed?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I move amendment No. 8:

In page 4, line 20, to delete “treason or of”.

Amendment put and declared lost.

An Cathaoirleach: Information on Seán Doherty  Zoom on Seán Doherty  Amendments Nos. 9 and 10 are related and amendment No. 11 is consequential on amendment No. 10 and all may be discussed together.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I move amendment No. 9:

[1823] In page 4, line 24, to delete “forty” and insert “twenty”.

I find it extraordinarily anomalous to be introducing amendments to suggest that anybody should be locked up for 20 years compulsorily. The extraordinary inhumanity and the unnecessary nature of terms of imprisonment of 40 years need to be discussed properly. Nobody dealing with the penal system would justify locking somebody up for 40 years because of what it would do to the individuals, to the system and to those who have to keep them in custody. There are people in prison for 40 years and they are in a position to make life extremely difficult for members of the Prison Service because they know that nothing can be done to them.

Section 4, and the penalties of 40 and 20 years, is a classic example of unnecessary and meaningless overkill. If somebody is sentenced to life imprisonment that means life imprisonment. There is no legal basis for releasing persons, there is no obligation on any Government to release a person any time before the end of their natural life. The reason people are released from prison is that Government, on the advice of their officials and — hopefully from now on — on the advice of the committee under Dr. Ken Whitaker, realise that the interest of society, of the individual and of the Prison Service are best served by a person being released from prison. It is meaningless, drum beating, law and order nonsense, to start touting sentences of 40 years, because they do not achieve any purpose. They are not a deterrent and they never have been a deterrent to the sort of people that are intended to be covered by this section. They are not a proper penalty. They will not save the lives of any members of the Garda Síochána.

As I have said frequently on legislation dealing with criminal law generally, the most effective deterrent to crime is the likelihood of being caught. The likelihood of being arrested and convicted is the real deterrent, and not the length of [1824] the sentence. I have reason to know many people who have been involved in criminal activity and I am 100 per cent sure that none of those people had the remotest idea what the penalty was going to be, nor would they have the remotest idea if the Government decided to increase the penalty from five to ten years. There may well be certain categories of particularly ruthless criminals who will cover themselves, but in the case of politically motivated crime of politically related crime I do not believe the penalty will have the least effect on it.

There have been the extraordinarily illogical arguments from Senators in front of us as well as on the Government benches, that one of the reasons for abolishing the death penalty was that it would avoid creating martyrs. People are prepared to accept on the one hand, that those who commit these offences would be happy to be made martyrs of, and their organisations would allow them to be martyred, but somehow they would be deterred by a 40 year sentence in prison. There is no logic to that. There is no deterrent in it. There is no good penalogical reason for locking people up for 40 years. One has to conclude, therefore, that, as with the death penalty, the 40 years here has as much to do with retribution and with vengeance as it has with the protection of the Garda.

We have got ourselves into such an illogical twist now that those who will scream loudest for 40 years imprisonment for the murder of a garda were not prepared to support us in any logical way in our suggestion that the armed forces deserved whatever defence, however meaningless it is, that was being offered under these sections. We are in a total logical non sequitur at present, with penalties being imposed that are cruel and vindictive, that will not deter anybody from committing an offence, that will not protect the Garda, that will not serve any purpose other than make the life of some of those who are attempting to protect prison officers infinitely more difficult than they would otherwise have been. That is why sentences of 40 years and 20 years should not be imposed.

[1825] The law and order lobby — probably the most effective and enormous lobby in the Oireachtas — ties itself up into enormous knots because it thinks it has a simple solution to crime, which is to lock up every criminal and then discover it has overcrowded prisons and hopelessly under-staffed prisons. As the finest exponent of the law and order philosophy, Mrs. Thatcher in Britain has discovered she has no more prisons and chaos is developing in the prisons which are serving no purpose. She has got herself into a ridiculous early release scheme situation which is serving no purpose. The law and order lobby think they have a simple solution. They love to bang the drum, lock them all up and throw away the key, all the usual old nonsense, and it does not work. If it worked we might have some argument, but there is not a scrap of evidence that imprisonment either deters subsequent crime or rehabilitates convicted prisoners or reforms convicted prisoners. There is not a scrap of evidence to support it.

There is perhaps an argument for imprisonment for protection of society. If that is an argument, then life imprisonment is an adequate sentence. It is probably a classic lack of logic to have a Bill which states, in section 2, that a person convicted of murder shall be sentenced to imprisonment for life, and then to say in section 4 that they must be sentenced to a minimum of 40 years. Life means for the rest of your natural life. Who are we protecting from the responsibility of keeping people in prison for life? The Government? What Government will release somebody after serving five years in prison for murdering a garda? No Government whose composition I can envisage in the next 25 years will do it. It took us long enough to persuade Fianna Fáil to agree to the abolition of the death penalty. They are hardly going to start releasing people who have been convicted of this type of murder after five or ten years.

What are we at? We are involved in a meaningless ritual which we think will pacify a certain lobby. The simple truth is that, if Governments want to keep [1826] people in prison for the rest of their lives, they have to do nothing. They simply have to ignore the individuals, and they can keep them in prison for the rest of their lives. There is no legal obligation on anyone to discharge people even one second before they die. So what is all this about? This is all about ritual and whitewash to protect people from a very vocal lobby, a lobby which is entitled to be vocal because they do a difficult job, and in most cases, most of the time they do it very well. But, because they are entitled to lobby, we are entitled to demand logic and rational argument, not emotion and hysteria from them. As Senator Norris said — and I agree with him — I am not prepared to make a distinction between somebody who batters a small child to death and somebody who murders a garda. They are both appalling crimes which should bring with them very serious penalties and the appropriate penalty for taking away life is life imprisonment.

In order to go some way towards introducing an element of rationale and common sense, it seems to me that a minimum sentence of 20 years is reasonable. That is a conceivable period which can at least suggest to a prisoner that after 20 years he may be in a position to get early release or he may be in a position to look for release. But 40 years, even if you introduce 25 per cent remission, for anybody in their thirties is effectively saying to this person: you may as well forget about it; you are there for the rest of your life. Therefore, you can do what you like, you have no reason to participate in any prison activities, you have no reason to be of good behaviour, you have no reason to do anything. In my view, this will be an incentive for people in detention to behave badly. It serves no purpose; it will not change people's minds; it will not stop crime.

The penalty for murder should be and is life imprisonment and the real deterrent to murder is to ensure that the person responsible for any murder is found, arrested, convicted and sentenced to life imprisonment. I am increasingly astonished by those who believe that you have [1827] to double up on life imprisonment and say 40 years. Other than the fact that it makes them feel good to stand up on the barricades and say. “We are defending the Garda. We are going to lock him up for 40 years”, what difference does it make? What member of Fine Gael or Fianna Fáil is going to release in less than 40 years a member of a paramilitary organisation who has murdered a garda? If you all agree that 40 years is the appropriate sentence, which of you will release somebody before 40 years? Are you afraid for yourselves? Who is going to let all these people out after a shorter period? You are going to be in Government; I am not. You are the people who believe you are tough, who are going to lock up people because you want to prove you are on the side of the Garda — not on the side of the Army, because you dumped them. You are going to lock them up for 40 years but you do not trust yourselves to keep them locked up.

The truth is that, if we end up with a large number of persons convicted of paramilitary style crimes and in ten years' time this country returns to peace and we no longer have widescale paramilitary activity, we will all agree, that it is meaningless to have people in prison for 40 years and we will change the law. We all know that, as sure as night follows day, when we have peace in this country the political and public demand will be for the release of all those who have been locked up as a consequence of the troubles. Perhaps the party in front of me, who pride themselves on their law and order antics will not support it, but I know Fianna Fáil well enough by now——

Mr. Cosgrave: Information on Liam T. Cosgrave  Zoom on Liam T. Cosgrave  I do not think it is antics. The Senator should withdraw that remark.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  It is a deeply held conviction about an issue.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  If Fine Gael provoke me about their law and order attitudes I will use worse words than “antics,” not [1828] better. So they would want to mind themselves. I used a fairly carefully chosen word. I could use a lot worse about Fine Gael and law and order, because the basic problem about their antics is that they do not work.

This whole thing has nothing to do with how long people stay in prison. It has to do with proving that you are a macho person who will lock up people. The truth is that in 20 years time you will be letting them out by one means or another, on grounds of compassion, health or something else. That is inevitable, and it is right.

Perhaps I should have adopted the line of the Labour Party and simply oppose the section, but I wanted to suggest to people that there is a reasonable intermediate position; a minimum of 20 years, not a maximum of 20 years. The sentence is life imprisonment and the minimum period of imprisonment should be not less than 40 years because if the person sentenced was 18 or 19 years of age, he would be 59 before he was released. I suspect there are some people in front of me, judging by the reaction to my passing comment, who would lock them up for more than 40 years. There may even be some who would prefer to hang them.

As I said about section 3, there is no logic, no sense, to this. Life imprisonment is life imprisonment and that is enough. We should have enough confidence in the law and order instinct of the two biggest parties in the State to believe that for people who murder gardaí life imprisonment is going to mean that. We do not need all this ritual to pacify a lobby, and it is not the way Parliament should operate.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  Senator Ryan has accepted that we do away with capital punishment. Section 4, I understand, is replacing capital punishment by the term of years in prison. As I said on section 3 — and I was ahead of myself — now we are on this question of the years of imprisonment to be served. This is precisely what this Bill is setting out to do. [1829] Section 4 provides that a person who is convicted for the murder of a garda in the course of his duty shall receive a sentence of 40 years. Glibly, Senator Ryan has referred to the Army. Army personnel while serving with the Garda are covered in this Bill. The Army, when serving with prison officers, are covered by the Bill. Outside of that, surely a person convicted of the murder of a member of the Army should get life imprisonment or the substitute for capital punishment, 40 years.

I am confused by Senator Ryan's attitude. He has asked that capital punishment be abolished and substituted by a number of years in prison. What are we supposed to do with somebody who has committed murder?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Life imprisonment.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I do not understand the sympathy for a person who has taken a life, and that is what we are dealing with here. He referred to Fianna Fáil and Fine Gael but it is all the same who is in office.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We know that.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  If a person commits murder and is found guilty of that dreadful crime, whether they are given 40, 50 or 60 years, I do not offer any apologies to anyone for giving that person life imprisonment. What is the Senator arguing about? Does he want “life” inserted instead of 40 years?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is all.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The Senator likes to hear himself talking. I am trying to answer him.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Not very effectively.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I could do without your interruptions, Senator Norris.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  There is a difference between what is termed as an ordinary murder and the murder of a Garda, a prison officer or others referred to in [1830] section 3. I made my position clear on that during the debate on Second Stage. We have Report Stage to make any further amendments if we are not happy with section 3.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Senator should support my amendment in that event.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  We may have our own amendments. We do from time to time, as the Senator will be aware, table amendments to Bills. There is a difference between what the Minister has termed as a ordinary murder and the murder of a person referred to in section 3. Not only is the murder directed at the person referred to in section 3 but also at the institutions of the State because those people are the protectors of the institutions of the State. Such a murder is an attack on the institutions of State. A garda is not murdered because of himself personally but for what he does and what he represents. That difference cannot be over emphasised. Gardaí are obliged by there oath of office to challenge some of the most fanatical, brutal and vicious terrorists and criminals in the world. They do so in an atmosphere charged with emotion. They are unarmed. In fact, they are one of the last unarmed police forces in Europe. They face criminals and terrorists without any defence. They are doing their job of protecting persons and property from violence and criminality.

Gardaí are often alone when the most violently disposed members of society have to be confronted. We must differentiate between the murder of a person in those circumstances and what the Minister has termed an ordinary murder. There should be a substantial deterrent and 40 years is correct in those circumstances. Under Article 13.6 of the Constitution the President, in extreme circumstances and acting on the advice of the Government can remit any of the sentences.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I know that.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  The door is not fully closed as he suggests on remitting the [1831] sentence in extreme circumstances of a person sentenced under the Bill. There must be a stronger deterrent than life imprisonment, as interpreted by Senator Ryan. Life imprisonment is the sentence for armed robbery and if a criminal commits armed robbery and is confronted by an unarmed garda what is the deterrent for not shooting him in those circumstances? The sentence for each crime will be the same. There should be a greater deterrent.

Senator Ryan said we may be unsure in Fine Gael of our views on capital punishment. Senator Ryan must not have heard my Second Stage speech when I, without any ambiguity, put on record our abhorrence of capital punishment and the taking of life at any time by anybody in any circumstances. That is the view of the Fine Gael Party and any suggestion other than that is misrepresenting in an extreme way our view that the institutions of the State and the people who defend them, must be protected.

Professor Conroy: Information on Richard Conroy  Zoom on Richard Conroy  There are two sections which are really the kernel of the Bill, the first section and the one under discussion. This is a very special section in many ways. It refers especially to treason or the murder or attempted murder of a person referred to in section 3.

One of the great things about living in this State is that we have not only an unarmed police force but gardaí who are recognised by all as genuine, decent people endeavouring often to do a difficult job. They are approachable, honest and while they have their own idiosyncrasies they are compassionate as well. We take this, perhaps, for granted. Unfortunately, in most countries of the world that is not the situation. That includes many so-called civilised countries, not necessarily Third World, developing countries or dictatorships. In most countries the police are people whom ordinary folk try to avoid if they possibly can, even to ask road directions. That is dreadful and horrible. We are very fortunate in that it is different here and long may it continue. In this country, [1832] or any country, the policeman, the garda, is or should be the protector of the individual or citizen. He risks his life in that protection. He is not just any citizen, he is not even a member of the armed forces who has a particular role to play, he is the guardian of the peace, as we literally say it in Gaelic. We have to recognise that that is something special and something different. I would go a long way with some of the arguments that have been expressed by the other side. I have sympathy with the comment, made in relation to deterrents, that the main deterrent is probably believing that one is going to be detected and convicted. Many criminals have little or no idea what sentence they may receive. That, particularly applies in the circumstances we are looking at under section 3.

I am not so sure about the other arguments about deterrents one way or another. There are countries in which immediate summary execution is part of the way of life. They seem to maintain law and order but I do not feel that the deterrent argument is a satisfactory one. To take away someone's life is the ultimate. There is nothing beyond that that we know of. Some of us may have our religious beliefs but they are beliefs not founded on any fact. For someone to take away someone else's life he or she in one sense merits having his or her own life taken. I do not think we should because it is that ultimate removal of the person, the being that is, that may never be again. The second reason applies in the circumstances dealt with under section 4. They are likely, as several speakers have implied, to occur in circumstances of considerable emotional state in which the normal peaceful processes are not being observed. At times, as we have seen across the water and may well see here, when there is enormous emotional feeling it is all to easy for people to have a demand that might well sweep across both sides of this House to have people pay for some horrible crime against the Garda. It is very understandable, but it has one absolute reason that I would not go with the death penalty and that is, that mistakes can occur. We have seen that [1833] ourselves in this House. We have discussed it elsewhere. We cannot claim so much omniscience that we would avoid any such mistake but there is no way of bringing somebody back from death.

As regards life imprisonment, or the 20 years or 40 years, I am not sure I would go entirely with that argument advanced. Quite frankly, I do not like fixed prison sentences at all. It is an enormous improvement to have the death penalty removed and a prison sentence, albeit 40 years, imposed in its place. I am not convinced that taking a figure of 20 years instead would necessarily greatly change matters for a young man — it is likely that young men of 25 or 26 years of age will be involved in such crimes — 20 years, which I know is totally different from 40 years, would not be a deterrent. He would look at 20 years and say he would be in his fifties or sixties when released. I must say that 20 years or 40 years in some ways seem too long as far as I am concerned, but I am astonished at the idea of substituting life imprisonment as well. There are countries in which life imprisonment means life, not 20, 30 or 40 years, and there have been instances when it was 50, 60 or even 70 years. That would be an appalling minimum sentence. I do not like having it on our Statute Book, even if it is remitted in practice. I do not think it should be there. Life imprisonment may be needed because there is a psychiatric circumstance or something of that nature but not otherwise.

One aspect which I do not think has been mentioned under this section is treason. Again, it is likely to occur under very emotional circumstances. One tiny happening to one Irish person many years back reminds me very vividly of this and that was the execution, or, if one likes the judicial murder of William Joyce, Lord Haw Haw. I have not time for the crimes of the Nazis but, at the same time, I cannot help thinking that that Irish man was hanged, executed, simply because he happened to be a good radio broadcaster. I welcome this section.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  We ought to bear in mind [1834] the fact that there is in the imposing of a prison sentence not only a retributive motive but there is also, allegedly at least, an intention to rehabilitate the prisoner. This element ought to be borne in mind by the House. From what I know of the experiences of people convicted in these sort of circumstances, the process of rehabilitation usually takes place inside the first ten years and can be professionally verified. In the documentation supplied, for example, by Amnesty International one will find numerous examples of people who, as a result of incarceration, study, reflection, thought and so on very clearly alter their personality to such an extent that it is evident to those entrusted with their custody that they were not longer dangerous, that they had reformed and that it was perfectly reasonable to release them unless, of course, one emphasises the vindictive and vengeance motive on the part of society. It does seem that to imprison somebody for 40 years if after the passing of one quarter or less of that sentence they have been completely rehabilitated constitutes nothing other than cruel and unusual punishment. It is vindictive. There is nothing worse, in my opinion, than the removal of hope from a human being and that is precisely what has happened. Let us look at this House, there are people fidgeting, squirming and becoming mildly abusive because we have delayed here for a matter of hours. If being “imprisoned” in the beautiful surroundings of Seanad Éireann can have this impact on Senators, we ought to consider what 40 years imprisonment could have——

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  To whom is the Senator referring? We are quite happy to be here.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Senator Honan has dramatically illustrated my point. I am most grateful to her; she is one of the most useful props in the House. People obviously become irritated——

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The Senator should withdraw that remark.

[1835]Acting Chairman (Mr. R. Kiely): Information on Rory Kiely  Zoom on Rory Kiely  Senator Norris, without interruption.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I thought I heard Senator Honan ask me to repeat the remark.

Acting Chairman:  The Senator should confine his remarks to the amendment.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I was making the point that it is an uncomfortable situation to be incarcerated. It can be motivated by vengeance and can be counter productive. We ought also to wonder who after the first ten, 15 or 20 years is actually being punished. I would maintain that among those being punished is the taxpayer. I have just asked my distinguished colleague, Senator Costello, about how much it costs to keep somebody in prison for a year and I am told it is £31,000. I am not terribly good at mathematics but that comes out at somewhere near £1.25 million for the privilege and spiteful pleasure of keeping somebody unnecessarily in jail as a result of mandatory life sentences.

I am not saying that everybody should be released after the passage of ten, 15 or 20 years but I am certainly saying that a mandatory sentence of 40 years is wrong; it is costly, it does not work, it takes away hope even in the case of politically motivated crime which I disdain. In my opinion, if anything, the use of human beings as pawns in a murder game by people like the Provisional IRA is more despicable than many other crimes. Even in that circumstance there is provision already. There is no question of doubt that if there was a politically motivated series of murders, as there already have been and people were imprisoned, there is always the possibility of amnesty. It is always there so that the mandatory nature of a 40-year sentence could in any case be overturned.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  I am amazed at the way this debate is going. The previous speaker was talking about the spiteful pleasure of society in keeping prisoners in detention for 40 years. As I see it, when people are asking for more lenient [1836] sentences — ten year sentences or sentences to be part of a rehabilitation programme — they are, in effect, making representations on behalf of the IRA and the extreme elements in this society. As far as I can see nobody else is involved. The organisation that those people are pleading for — if I hear Senator Norris correctly — are imposing the death penalty in their own “courts”. As well as that they hand out punishments like kneecapping and so on. They are extreme forms of punishment and, thanks be to God, the State, on behalf of the ordinary Irish people, have not those types of punishment in our system.

There must be a very definite deterrent because those, on behalf of the ordinary citizens of this State, who sign on and take an oath of loyalty to the State to serve the country whether as a member of the Garda or the Army are entitled to the protection of the State.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Army is not protected by the Bill.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  That does not take from the fact that they should be; they should have the protection of the State. There must be significant deterrents and a 40 year mandatory sentence is some deterrent. I would like to see the physical conditions in prisons improved. That can only be done by finance but, nevertheless, the Department are doing a reasonably good job in rehabilitating but they are absolutely cash starved. We need greater resources. With the high percentage of ordinary prisoners being illiterate we need more one-to-one tuition. We do not have that. There is a great difficulty about providing the resources but at least I would like to see more money being spent on the physical environment of the prisons.

I am in favour of a very definite mandatory sentence because once somebody is murdered, whether for political purposes of whatever, their life is gone forever. The hardship that survivors have to suffer is added to when they read in the newspapers that people are being let out after their sentences are commuted. We must [1837] have a sentence to meet the crime. We should bear in mind that we are removing the death penalty, something which, thankfully, has not been implemented here for many years. Nevertheless, we are taking it off the Statute Book. I support section 4.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I welcome Senator McDonald's remarks about his wish for improvement of conditions in prisons. Indeed, he has some experience of prisons being a visitor to Portlaoise where there are long-term offenders. I am also glad he agrees with me and disagrees with the Government that if we are to extend a mandatory sentence to those who are concerned with the security of the State, it should include the three arms of the security and not just the Garda and prison officers but also the Army. Unfortunately, the Government are not prepared to do that and are discriminating against the Army. That is not satisfactory. It is time they got their act together in that respect.

Finally, he referred to the Independents' opposition to the provision and described their attempt to improve section 4 as making representations on behalf of the IRA. I can only regard that as a cheap jibe and it is certainly unacceptable. What is being done by all of us — I have tabled an amendment in opposition to the section — is not in any circumstances making representation on behalf of any illegal organisation. We want to improve the Bill which, as we have stated, is inadequately drafted and does not fulfil the purpose of the underlying principles that govern it.

I support my colleague, Senator Ryan, in his attempt to ameliorate the mandatory sentence of 40 year minimum sentence by reducing it to 20 years. My own position, of course, is to oppose the section because I believe it should be a sentence of life imprisonment rather than a mandatory sentence. Any amelioration in the circumstances is welcome. I am not saying this as an individual, a Senator or as a member of the Labour Party. I want to quote what the General Secretary of the Garda Representative Association [1838] had to say in the course of a letter printed in the Garda Review of February, 1990 and sent to the Minister for Justice. He said he was opposed to the abolition of capital punishment because it would remove an essential deterrent to the would-be killers of members of one of the last unarmed police forces in Europe. He want on to say that he was greatly concerned about the possible consequences for his colleagues and the future of the Garda if adequate protection measures were not introduced. Then he advised the Minister that for attacks on gardaí, mandatory sentences would have to be introduced and that for murder, and attempted murder, the mandatory sentence would of necessity have to be substantial. He suggested that a sentence of 25 years would be appropriate.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  That was for an attack; not a murder.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  We are talking about the abolition of capital punishment for the murder of gardaí. He does not distinguish.

My apologies. He says: “Mandatory sentences will have to be introduced for attacks on gardaí. For attempted murder, the sentence would be 25 years”. My apologies; I misconstrued that section.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  We agree.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I agree it would be preferable to have a sentence less than a mandatory 40 years. I consider that 40 years is a savage penalty in the sense that it is mandatory and does not take into consideration any circumstances, whether of age or other circumstances, that might come up in the course of the trial at the discretion of the judge in terms of a recommendation, or that might come up subsequently in the course of the term of imprisonment. The cost of imprisonment is huge. We are talking about £600 per week, or £31,000 per annum or in the region of £1.25 million for a life sentence of 40 years, as Senator Norris said. Of course, that would be, [1839] within that period of time, £2 million or £3 million. It is a massive sentence.

Somebody coming out after a period of 40 years would certainly be in a grave condition of institutionalisation. The Whitaker Committee of Inquiry recommended that after seven years institutionalisation set in that could be irrevocable, and that that was its opinion having got expert opinion on the matter. Therefore, they recommended that all sentences of long-term prisoners, without distinction, should be subject to review after a five year period. The Minister has set up such a review but he has specifically omitted this section. He is not allowing this mandatory sentence to be considered. That, I think, is unfortunate because this would be a formal sentence review body that would look into the circumstances. It would be most appropriate that this should be considered.

I would point to the comparative situation in Northern Ireland. There is a sentence review body in Northern Ireland who consider all of those who have been sentence to life imprisonment. May I point out that while we are concerned so much about a mandatory sentence in the Republic of Ireland, there is not such formal imposed mandatory sentence in Northern Ireland. Yet, there are crimes of a political nature and crimes that are committed against all the security forces, whether it be the army, the RUC or the Ulster Defence Regiment. I see there last month reported in the newspapers where a total of 74 life sentence prisoners in the North will be released from prison or given release dates this year. These are people who have been convicted of murder of the security forces. We would not say that our situation here is as serious, but there are people who have been convicted of murder and given a sentence of life imprisonment. They have not been given a mandatory sentence of 40 years. Certainly, recommendations would have been given by the judge, but the judge would have used his discretion and he had discretion there. Likewise, on the judicial side of it, there can be judicial discretion in relation to the gravity of a [1840] particular offence. There can be discretion in the context of imprisonment whether or not a person is any longer a threat to society or whether he can be released.

We must remember, too, that we have a stated policy in the Department of Justice. That policy is that the function of imprisonment is to deprive somebody of his liberty who cannot be sanctioned in any other fashion. That is the stated function. The Department of Justice states they are in favour of a process of reform and rehabilitation. Those are the planks on which that particular sanction is based. In that context, we must leave the option of good behaviour where, over a period of time when their sentence is reviewed a person is judged not to be likely to reoffend or that society is no longer at risk from that person. That is not permitted in this mandatory sentence.

We know that the one amendment the Minister accepted was accepted from the prison officers in the context of remission of sentence. He had intended to make it a mandatory sentence without any remission, but because the Prison Officer's Association — and he stated this in his introductory remarks — made a statement of their perception of the situation which was that unless some carrot was handed out to a person who had got a sentence of 40 years such person would be very difficult to contain in the present context as that person would have nothing to lose. A mandatory sentence of 40 years is, in fact, the equivalent of a mandatory sentence of life imprisonment. In that context, the Minister accepted that amendment.

The extension of the similar principle would be that if a person is going to be encouraged to reform and to change his life there should be the option there to do that. There is no option in this measure. It is contrary to our policy; it is contrary to Christian ethics. That is one of the areas where I find a major problem. If a sentence of life imprisonment is given and a sentence of life imprisonment is carried out in the prison context, and then a decision is made to release a person, that is only a licence to leave the prison while [1841] such person is of good behaviour. These people are not given an absolute release; they can be recalled at any time and life imprisonment means life imprisonment.

For all of these reasons, I would say that in this section it is preferable that we have a mandatory sentence that is not so savage. That would be a preferable situation. It would be an amelioration of the circumstances. My preference is that we would have a sentence of life imprisonment which gives that flexibility, which is in operation in the jurisdictions here, in Britain and in many countries in the EC rather, than that we should have a simple mandatory sentence which is inflexible, rigid and is going to cause all sorts of problems. Circumstances will arise when we will find ourselves seeking to change this legislation in years to come when the present circumstances do not exist.

Mr. Cosgrave: Information on Liam T. Cosgrave  Zoom on Liam T. Cosgrave  I welcome the opportunity to contribute in relation to this amendment and on this section. Amendment No. 4 is an attempt to undermine our protection for the Garda. I do not know whether that is the intention of the movers of the amendment. While this debate has been developing here, it appears the criminals or murderers seem to be in a position of privilege and have to be looked after while the victims of the crime — the murdered gardaí, their wives, families and colleagues — are less well provided for. I do not know whether that was the intention, but that has been the way the course of this debate has been going. There is nearly an attempt to say: “Well, we have to rap you on the knuckles, but we will try and get you out as quickly as we can”.

“Life sentence” is a bit of a misnomer nowadays. I do not know how many people have died in custody. Maybe Senator Costello who is briefed on these matters would be able to clarify the matter. Life sentences or “life” as we know it was the term used in former days — does not now mean imprisonment for life. We want to give protection to the members of the Garda. We have to pay attention to what they have been saying [1842] and what they want. Terms have been used here this morning in relation to cruel and unusual punishments, savage penalties and taking away all hope.

We should get our priorities right. Various gardaí have been murdered. I remember in particular a double murder very near the Minister's constituency. That was a cruel and unusual punishment, taking away all hope from the widows of those gardaí. It was a savage penalty. Those gardaí who lost their lives and various others in Meath, Dublin and other areas, have not had their well deserved tributes in this House. There is a lobby to let out these murderers as quickly as we can. We cannot decorate them, but we have to let them out as quickly as we can. That is what is in this amendment. To try to further reduce the sentence being provided is an outrageous amendment. I hope that most of us will reject it.

I would also reject comments about Fine Gael “antics”. Our spokesmen here, Senators Neville and McDonald, have made constructive contributions. To describe any of the contributions from members of the Fine Gael Party — and from what I have heard of the members of Fianna Fáil Party — as “antics” should be totally rejected. What we should be doing here is trying to protect members of the Garda and giving them our support. If the death penalty is being abolished some special recognition should be given to the people in the front line — such as Garda Síochána and the prison officers who come directly into contact with these people. That is what we should be concerned about here.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I would like to thank all the Senators who contributed to this section. I am not accepting any of the amendments. Amendment No. 9 would substitute a penalty of 20 years for treason and section three murders, in place of the penalty of 40 years. The effects of amendments Nos. 10 and 11 would be that a person convicted of an attempt to commit a section three murder would receive a sentence of ten years. Senator Costello read into the record of the [1843] House the letter from the Garda representative body where they asked for 25 years for attempted murder. I cannot accept these amendments.

I agree with Senator Neville. The Minister explained in his Second Stage speech that there are very good reasons that offences set out in section 3 should attract a very severe penalty. He stated that these offences relate not only to murderous attacks on individuals — a matter referred to by Senators Norris and Ryan — terrible as they are but would also represent an attack on the very institutions of the State. A garda will not be shot by a subversive or a criminal because of who he or she is, but rather of what he or she is and what he or she represents. The garda will be at the risk of his or her life not because a criminal has some personal animosity towards him or her but because he or she represents the forces of law and order which we, as a society, have established to prevent crime and to apprehend criminals. Murder, or the attempted murder of a garda and the other murders referred to in section 3 are, therefore, different from any other kind of murder. I accept what Senator Norris said, but they are different from any other kind of murder and need to be marked, therefore, by a much more severe penalty. This is basic.

The Minister accepts that there can be argument about what special penalties should be provided for such offences. He knows that there is not unanimous agreement about the one proposed in the Bill. In deciding what penalty to propose in the Bill to replace the death penalty, he was guided by a number of concerns: (1) by the fact that the offences in question represented an attack on the institutions of the State; (2) that we have, as many Senators have mentioned, a largely unarmed Garda force whose only protection from those with murderous intent is the statutory protection we can afford them by means of a penalty with deterrent effect; (3) the security situation which exists in this country where there are armed subversive groups operating which represent a particular threat to our [1844] democratic institutions; (4) very heavy maximum penalties are already prescribed for the type of crimes which might give rise to the circumstances where a garda's life is put in danger. For example, the maximum penalty mentioned by Senator Neville for armed robbery is life imprisonment. An ordinary sentence of life imprisonment for the murder of a garda is very unlikely to have any deterrent effect on an armed robber who is trying to evade capture; and (5) that which has been for many years past effectively the penalty for capital murders, namely, 40 years imprisonment. Having weighed up all these factors the Minister concluded, and the Government agreed, that the proper course at this time would be simply to formally remove the death penalty from our Statute Book and that is what we are trying to do. It is something the vast majority of us want to see done. Otherwise, we do not want any radical change.

All of the current concerns which I enumerated above, which led various Governments over the last 20 years or so to recommend to the President that he should commute a death sentence to one of 40 years' imprisonment, remain. That is a help towards some of the points which Senator Costello and Senator B. Ryan in particular were trying to have accomplished by their amendments. This being so, a move to reduce the penalty at this stage could be misinterpreted as a weakening of our resolve to protect our gardaí and prison officers. It could have a serious effect on morale in both services. It could lead to a demand for the more extensive carrying of arms, and of most concern, it could imperil lives if criminals were to get the idea that we are going soft on the murder of gardaí, prison officers, etc.

With regard to the appropriate sentence for attempted offences, I can assure the House that this is a matter to which both the Minister and the Government gave particular attention. They considered all the relevant factors and concluded that the appropriate penalty for such offences was a mandatory 20 year [1845] sentence, that is, half the term proposed for actual murder.

Senators will appreciate that in many cases it is only mere chance that an attempt to murder a garda does not result in a fatality, and that such offences represent a real and dangerous threat to the State and to our unarmed police force. In recognition of this fact, the Government have chosen the severe mandatory sentence of 20 years as a penalty which reflects the seriousness of the offences concerned and would not be prepared to accept that a lesser penalty should be put in its place.

Senator B. Ryan said that in his experience many offenders did not know at the time that they committed their offences what the penalty would be. I cannot accept that for people who commit crimes like this. They are fully aware of what the penalties are, but even if they are not, under the provisions of this Bill, nobody will be left in any doubt about what the penalty for murdering a garda or a prison official will be.

I am at a loss to see the logic of Senators Ryan's and Costello's argument for imprisonment for life. If they are trying to have the mandatory sentences reduced to roughly half of what is being proposed in the Bill it is difficult to know what they mean by imprisonment for life. Senator Conroy made the point that imprisonment for life could well be 60 years. Senator B. Ryan also stated that the 40 year penalty could cause a prisoner to be disruptive in prison. As Senators are probably aware, there are at least nine capital offenders serving 40 year terms at present. They are capital offenders who have had their sentences of death commuted. This has caused no great problem in the Prison Service.

Senators Norris and Costello referred to the question of the cost of keeping people in prison. Senator Norris was at pains to point out how much this was costing the taxpayer.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It costs £1.25 million per prisoner.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I feel that I should tell [1846] the Seanad that the Minister — indeed, I do not think anybody in this House — would not be influenced by the cost when considering measures to protect the lives of gardaí or prison officers.

The question of rehabilitation arose. Senator Norris made a very eloquent argument for the question of the removal of hope. I cannot accept that the State is being vindictive. I will not accept that. It is a very wrong premise. As many Senators have said, it is our duty to provide protection for those whom we ask to protect us.

Senator Cosgrave referred to a case in my own area ten years ago. I knew these two men very well; I know their families. While the Minister considers that the penalties proposed in the Bill are the most appropriate in the circumstances, he is not prepared to depart from them.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have listened with interest to the arguments about penalties indicating that our motives for introducing them were less than worthy of the people who raised them. The logical thing for me to do is to withdraw my two amendments and state my support for Senator Costello's position which is that the entire section should be deleted. In doing so, let me point out that we are talking here about minimum sentences of 40 years and 20 years. We are not talking about maximum sentences. It would be perfectly feasible, God forbid, for a Government to keep a person, in prison who had been sentenced to life imprisonment for 40 years or longer. I am not sure what purpose that would serve. The simple solution is to withdraw my amendments and support Senator Costello's amendment.

I would like to thank Senator Neville for reminding me about the Constitution and about the power of the President to remit or commute sentences. Fortunately, it is not in the powers of the Oireachtas to interfere with that, or else the law and order lobby might have done that too. All of this is a sham. The sentences of 40 years can and will be reduced when the political climate suggests that it is possible to do so. What we are doing [1847] here is probably fooling the Garda, as well as everybody else, by pretending that it is going to be different, because we are not going to keep people in prison for 40 years. I do not know how one can put a wager on in the process of a parliamentary debate, but I am certain that the people who are in jail for ten years of a 40 year sentence will not be in prison in 30 years' time. They will be released because there is a constitutional prerogative of the President, presumably on the advice of the Government, to commute sentences. I know everybody else stood up and said we have no intention of doing so, but that is the way it will happen, and quite rightly.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 not moved.

Question proposed: “That section 4 stand part of the Bill.”

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I would like to thank the Minister for his courteous and wide ranging reply on the amendments and to draw on one point. I was very interested that he enunciated Government philosophy that they would spend any amount of money in order to preserve life. Will the Minister communicate this admirable philosophy to his colleague in the Department of Health, the Minister for Health, so that the T.4 cell count programme can go ahead and people's lives can be saved in this area as well, and AZT treatment made generally available? I applaud the Minister's sentiment. I hope it extends to the Department of Health as well.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  When the Seanad discusses that legislation we will come to that. Could we come back to what we have here today and we will get it out of the way?

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  On the section, I withdrew my amendments. I did not dream that the Minister was going to try to persuade us to take the section in such a [1848] hurry. I would like to put on record, briefly, the fact that this section as it stands, contains reference to treason. None of the arguments about treason I raised a week ago have yet been dealt with. Treason, as defined under the Constitution, can range from making war on the State to offences that are related to being involved in assisting other people to conspire to make war on the State. To suggest that treason, as defined, is identical with the murder of a garda is meaningless. I oppose the section.

Question put and declared carried.

Acting Chairman:  Amendments Nos. 12 and 14 are related; amendments Nos. 18 and 19 are consequential on amendments Nos. 12 and amendment No. 20 is consequential on amendment No. 14. All may be discussed together.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I move amendment No. 12:

In page 4, lines 30 to 36, to delete subsection (1).

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We are all in the business of symbols at this stage because anybody who commits the murder of a garda is going to spend a large proportion of his life in prison. That is a fact. Section 5 (1) reads:

The power conferred by section 23 ...to commute or remit a punishment shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies ... be exercisable before the expiration of the minimum period specified by the court under section 4 less any reduction of that period under subsection (2) of this section.

That is all very well except that the constitution makes specific provision for the President to commute or remit punishment. All that high sounding law and order stuff is saying is that the law will [1849] not apply, but that the constitution which confers exactly the same powers on the President will apply. All we are doing is saying that if we have to do it, as I am quite certain will be done, it will be done under the Constitution rather than under the law. What is the point in changing the law? We went through all this nine years ago when we debated the Fine Gael/Labour Coalition's Government attempt to abolish the death penalty. This is actually a symbol of our disapproval. The finest symbol of our disapproval is the fact that we are prepared to lock people up for life. What that will mean will be a decision of a Government of perhaps ten to 15 years' time and it will be taken in the light of all the circumstances of the time. That is why I suggest subsection (1) of section 5 be removed. All it is doing is changing the law. It is not saying that people will not have their sentences either commuted or remitted. It is simply saying that the legal basis for commuting or remitting a sentence will be changed or a constitutional basis. It is under that section of the Constitution which allows the President to commute or remit that the power to make laws to do the same thing is given to the Oireachtas. All we are saying is that the Minister will not have the power under the law to do it and presumably therefore the Government will simply have to discuss it, come to a resolution, ask the President and the President will do it. What is the difference? There is no difference. All it is doing is yet more symbol making and law and order sabre rattling, which is entirely meaningless. Life imprisonment means life imprisonment and will continue to mean that as long as any Government want to keep somebody in prison for life.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I agree entirely with my colleague, Senator Ryan. We have already got a Constitutional provision in relation to power to remit or commute punishment — and we are now taking away that same power from the Minister — under the terms of section 23 of the Criminal Justice Act, 1951. The opposite should be the case: that power should [1850] remain. Again, as we have been saying about so much of this legislation, a discretionary element should remain as it stands with the courts and with the prison authorites, and here it should remain with the Minister rather than having to resort to the constitutional provision which gives the discretionary power to the President. It is much better that it would be done by the Government directly and that it would be done by the relevant Minister, the Minister for Justice.

This power is a useful power that has been given to the Minister and is about to be taken away in this section. I could instance areas where it could be used. For example, there is a lot of publicity nowadays about what has been termed miscarriages of justice where people were sentenced for very long periods in prison. In a neighbouring jurisdiction, if the death penalty were in existence, persons would no doubt have been sentenced to death where it is widely believed the sentences imposed were incorrect and invalid. It is in a circumstance like that, where the Minister should be entitled to commute a sentence of that nature, it is not permitted under this legislation.

There are other instances where there are similar but not quite the same defined powers, but that is one clear example of a miscarriage of justice. For example, where somebody has spent a long period on remand prior to conviction that would increase the minimum mandatory sentence from 40 years to a few more years. Once the decison was made, that period would not be included in the 40 years. That is a power that should be within the authority of the Minister rather than of the President. It would be a very reasonable power. In the case of a re-trial and where a certain period has been spent in prison and the original sentence was quashed and there was a new mandatory sentence of 40 years, what will happen?

Take, for example, somebody who has spent a long period of time in another jurisdiction. There is a lot of publicity at present in relation to a gentleman called Joe Doherty, who has been in a prison in the United States since 1983. He is there in relation to an offence committed in [1851] Northern Ireland. I am just giving a parallel situation where somebody who has not been convicted of any offence has spent seven years in prison. Would this be added to the mandatory punishment? Would this not be a type of situation where the discretionary powers in the legislation should be left to the Minister for Justice rather than transferred as it is and which, as Senator Ryan has quite rightly pointed out, remains already in constitutional form with the President? I do not think it is appropriate for the President; I think it is appropriate for the Minister.

My second amendment on section 5 (3), deals with the power the Minister has to release temporarily. That is perhaps the most widely used power of all namely, temporary release for lots of reasons: Christmas parole which takes place on a regular basis for a large number of prisoners or, more commonly, working parole. That is the one to which I would refer specifically.

I quote from The Irish Times in relation to that group of prisoners, many of whom had been in prison for murder of security forces personnel in Northern Ireland and who are now being given a release date. What is going to happen to these 74 prisoners who would be in the category we are referring to here? Once a release date is issued the prisoner will go through a nine months pre-release procedure, part of which involves living in a working out unit where he travels out to work each day and returns by night. There is a release procedure for him which obviously is something that is conferred by the authority of the Minister. A person, even one body who is serving a mandatory sentence, needs some induction back into society. To say that the use of these temporary release powers which the Minister has will be limited to what are grave reasons of a humanitarian nature is counter productive and does not serve the function of imprisonment and the possibility of useful release back into society. It reveals the abence of a statutory parole system. This operates on an ad hoc and haphazard basis.

[1852] In a neighbouring jurisdiction, where problems of this nature in relation to serious offence of murder against the security forces are a regular occurrence, nevertheless they have built into their system a necessary degree of flexibility which we deliberately disallow. The fact that the powers are now being taken from the Minister in those sections is very unsatisfactory and does not serve any useful purpose but obstructs and causes problems in relation to future induction back into society of a person who has served a long, mandatory sentence in the context of these serious offences.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I do not think that Senator Ryan was serious when he said the question of the 40 year penalty was just a sham and that nobody will ever serve this. I think he said that some what tongue in cheek. I am not in a position to say what any government in ten, 20, 30 or 40 year's time might or might not do. That is up to them and to the circumstances that might prevail at the time. It is sufficient to say that we are talking about a particular problem that exists and that this Bill is to abolish the death penalty and to substitute for the death penalty by sentences which would have the result of deterring people and of making it well known how seriously the Government would view murder of gardaí and prison officers. Senator Ryan's remarks does not really help us to achieve that.

It is amusing that in other areas efforts are being made to curtail Ministers' powers; yet, in this case we are trying to give the Minister much more power. This legislation can remove that power that the Minister has, but we cannot remove the power that is there in the Constitution from the President. I do not think we would want to do that. Even if we did, it would take a referendum, as the Seanad well knows, to remove that power that the President has under the Constitution.

If one accepts amendment No. 12 that would mean that the power of commutation or remission which has been conferred on the Government and on the Minister for Justice under the Criminal [1853] Justice Act of 1951 could be exercised in respect of a person convicted of treason, section 3 offences or attempts. Acceptance of No. 14 would mean that a person sentenced for a section 3 offence or an attempt could be considered for a temporary early release before the expiry of the minimum term specified by the court less any remission earned for good conduct.

In the case of persons convicted of section 3 offences under military law, amendments Nos. 18, 19 and 20 would allow such persons to have their sentence mitigated, remitted or suspended and would enable them to secure temporary release in certain circumstances. As I have said, the Minister has given careful consideration to the question of whether persons who are found guilty of treason or of offences to which section 3 applies should be eligible for temporary release or to have their sentences remitted and it is his belief that, once it has been determined that a heavy mandatory penalty should be prescribed as a deterrent to the murder of gardaí, prison officers, et cetera, we must, if it is to have the desired effect, make it abundantly clear that it is not going to be watered down. This is why the Bill provides for the exclusion of the powers of remission and earlier release normally exercisable by the Government or the Minister.

The Minister accepts that a long immutable sentence is not ideal from the point of view of rehabilitation — a point made strongly by Senator Costello, Senator Norris and Senator Ryan. However, he takes the view that his primary concern in this Bill is deterrence and the protection of the lives of gardaí, prison officers, et cetera. As has been stated and re-stated, it will be possible for the President to exercise his constitutional power. It could be that in a very rare and exceptional case this avenue could be followed. Temporary release will, of course, as mentioned by Senator Costello, be possible for serious humanitarian reasons but such release will only be for such limited duration as is justified by these reasons.

Amendment No. 19 is probably the [1854] result of some confusion. It relates to the power of the Minister for Defence and certain senior service officers under section 222 of the Defence Act to suspend a sentence of imprisonment or detention passed by a courtmartial. The effect of the suspension is that the offender is returned to his ordinary duties in the Defence Forces. So, naturally, there is no corresponding provision in relation to sentences passed by the ordinary courts. The power of suspension in these cases is non-statutory. Paragraph 4 (2) of the First Schedule to the Bill provides that the power of suspension shall not apply to a sentence of imprisonment passed by a courtmartial for a section 3 offence or attempt.

Amendment No. 19 will provide instead that the power should not apply to any sentence of life imprisonment whether for treason, murder or any other offence. This would worsen the position of the offender in the case of other offences. What the amendment should logically have done would have been simply to delete paragraph 4 (q) of the First Schedule but this would have been unacceptable for the same reason as for the other amendments.

In the circumstances I must oppose these amendments.

Amendment put and declared lost.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I move amendment No. 13:

In page 4, between lines 44 and 45, to insert the following:

“(b) Remission of sentence by industry and good conduct shall be one-third of the sentence imposed.”.

What I seek to do here is to provide for an equalisation on the one hand of remission for industry and good conduction under the prison rules and regulations and on the other hand a slight increase in favour of the male species.

I quote from the 1947 Statutory Rules and Orders, Rules for the Government of Prisons. Section 38 (1) reads as follows:

A convicted prisoner sentenced to [1855] imprisonment whether by one sentence or accumulative sentences for a period exceeding one calendar month shall be eligible by industry and good conduct to earn a remission of a portion of his imprisonment not exceeding one-fourth of the whole sentence provided that the remission so granted does not result in the prisoner being discharged before he has served one month.

Section 39 (2) reads:

A male prisoner sentenced to penal servitude shall be eligible by special industry and good conduct to earn remission of a portion of his sentence not exceeding one-fourth of the whole sentence.

Section 38 (3) reads as follows:

A female prisoner sentenced to penal servitude shall be eligible by special industry and good conduct to earn a remission of a portion of her sentence not exceeding one-third of the whole sentence.

So under our prison rules and regulations in relation to penal servitude the good behaviour of a female prisoner has a preimum of one-third remission whereas the good behaviour of a male prisoner has got only one-quarter.

That is what you would simply call discrimination. I would say that that is a matter that should be equalised. We do not have penal servitude on our books any longer in practical terms. It is imprisonment. Here we are talking about sentences of imprisonment. I have always felt that more than one-quarter of remission should be granted for good behaviour. In Northern Ireland it has been one-third and now it is one-half for good behaviour in the context of most offences in Northern Ireland at present. In England, there have been similar increases for good behaviour. We in fact have one of the lowest rates of remission for good behaviour in the EC.

It would be an extra incentive to people to behave and to look for early release and it would also be in the best interests [1856] of the prison service. The prison service have often stated that it is on the good behaviour of the prisoners that good conduct and good order is maintained in prison. This is the appropriate time for the Minister to give equity in the contect of remission and to give a slight improvement for males in the context of all sentences of imprisonment.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  I am rather surprised at the statistics enunciated by the previous speaker because my understanding is that we have one-third remission for industry and good conduct, although in the category of prisoners that we are dealing with here they have consistently refused to engage in industry. So we are restricted to good conduct. My understanding is, and I would like the Minister to clarify, that one-third has been the rule of thumb for some time in our prison regime. Every individual prisoner has a different case even those tried in respect of the same crime. Therefore there should be the greatest possible flexibility. In Portlaoise there are prisoners serving life sentences whose only contribution to or part in the crime perhaps was that they had on their premises the vehicle used in the crime. Yet they received the same sentence as the people who actually committed the murder or whatever the crime was. That is why I would like the Minister to have as much flexibility as possible.

Would the Minister clarify whether there is one-quarter remission? My understanding and experience is that there is more than one-quarter remission. In the case of the two or three people who gained remission this year, the amount of remission would be more than one-half. Would the Minister clarify the position?

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  Could I have clarification as to whether the level of remission is a legislative matter or is decided by order of the Minister?

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  The amendment will be opposed. The explanation is fairly long. In reply to Senator McDonald, in practice at present, as the Senator knows, all prisoners serving fixed sentences of more [1857] than one month are regarded as entitled to one-quarter remission — unless any or all of this is forfeited as a consequence of breaches of prison discipline.

The Report of the Committee of Inquiry into the Penal System recommended that remission should be increased to one-third. This recommendation has not been implemented. While the Minister will continue to keep the question of the appropriate amount and role of remission under review it should be borne in mind that through the operation of our system of temporary releases, many offenders are released at or before the stage in which they have two-thirds of their sentences served. A primary beneficiary, therefore, of a general increase in remission will be a prisoner convicted of serious crimes, such as drug pushing or sex offences, where it is decided at present they should serve their full sentence, as allowing for the standard remission of one-quarter. I do not believe, however, that it would be appropriate in the present legislation to single out people convicted of such offences to qualify for a higher rate of remission than those convicted for lesser offences. The net effect of the amendment would be to reduce the length of time people sentenced under the Bill could expect to serve in prison. I have already made it clear that harsh though the penalties may be, they are warranted in the particular circumstances. Therefore, I am opposed to any amendment the effect of which will be to dilute these penalties. That would be the effect of the present amendment.

To elaborate on Senator Costello's remarks, it is the case that rule 38, paragraph (3) of the Rules of the Government of Prisons of 1947, states that a female prisoner, sentenced to penal servitude, shall be eligible by special industry and good conduct to earn a remission of a portion of her sentence not exceeding one-third of the whole sentenced. As he said, rule 38 (2) states that a male prisoner sentenced to penal servitude shall be eligible by special industry and good conduct to earn remission of a portion of his sentence not exceeding one-fourth of [1858] the whole sentence. However, in 1955 the Supreme Court, in the case of the State — at the prosecution of Henry Carney —versus the Governor of Portlaoise Prison held that rule 38 (2) of the 1947 rules was invalid.

Essentially, the court found that the Minister for Justice did not have the power to make rules to provide for remission in the case of prisoners serving penal servitude. Although the court dealt only with rule 38 (2), which dealt with male prisoners serving penal servitude, obviously the same situation could apply in relation to female prisoners serving penal servitude. It is only in the case of female prisoners serving penal servitude rather than imprisonment that the 1947 rules purported to provide one-third remission rather than one-quarter.

Rule 38 (3) is no longer applied and, as I have indicated already, to respond to Senator McDonald, the present practice is to regard all prisoners serving fixed sentences of more than one month as being entitled to one-quarter of remission.

Amendment put and declared lost.

Amendment No. 14 not moved.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I move amendment No. 15:

In page 5, between lines 4 and 5, to insert the following subsection:

“(4) The Minister for Justice shall, not later than four years after the commencement of this Act, make a report to the Houses of the Oireachtas on the effects of the restrictions on his powers imposed by this section.”.

I move this amendment because of the problems that might be created in a situation where people sentenced to 40 years feel that they are unlikely to leave prison. They can be ruthless in their dealings with gardaí or the prison officers on the basis that they are immune from further penalty. The effect of the restrictions on the Minister's powers should be looked at in operation to see how these people [1859] behave in such circumstances. We should not close the door on this debate at this point in time. In fact, the Association of Garda Sergeants and Inspectors have expressed their concern about this aspect. They state that in an escape attempt such a person can afford to be absolutely ruthless with the lives of officers, gardaí and the general public because society cannot impose a death penalty. The public quite rightly expect gardaí to defend and protect them against the increasing use of firearms by criminals. In return, gardaí are entitled to the maximum protection which society can afford. It is the firm opinion of the association — and they were speaking in the context of the death penalty — that the death penalty should be retained on the Statute Book as a factor in that protection.

This is still the situation in the case of a sentence of 40 years. There may be problems. I would not accept the excuse that the Minister can have an ongoing review of this legislation because that is not a fact. Despite the commitment of the Minister of State, Deputy Smith, that the Minister would be here, the Minister has not been here for most of the Second Stage and two debates on Committee Stage. The suggestion now that the Minister would review this in four years' time is not acceptable because the Minister is not in a position to deal with the Bill when it is going through the House in the first place.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I take the point that Senator Neville has made but I am afraid I cannot accept the amendment because I feel that it is unnecessary in principle. As for the principal review, I can assure the House that the Minister and, indeed, any Minister for Justice, would regard it as one of the responsibilities of his office to keep criminal law under continuous review and that this would be particularly so in relation to new legislation. Because of that, he does not consider that there is a need for Senator Neville's proposal.

A particular proposal which has been made, which is for review and for a report [1860] to the Houses of the Oireachtas on the operation of the restrictions imposed in section 5 on remission of early release within four years is somewhat pointless. Even if there were no such restrictions, it is inconceivable that the question of a remission or early release would arise in the case of a person sentenced for a section 3 murder, within the first four years of his imprisonment. Experience of the effects of the restrictions provided for in section 5 would be something that could only be gained in a much longer time span than four years. While I accept the thinking behind it, I cannot accept the amendment.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I would like to say to the Minister that if the Minister suggests a longer time span than four years, it is quite acceptable to us.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I am afraid I cannot accept that.

Amendment, by leave, withdrawn.

Section 5 agreed to.

Section 6 agreed to.

Sitting suspended at 1.30 p.m. and resumed at 2 p.m.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I move amendment No. 16:

In page 5, before section 7, to insert a new section as follows:

“7.— No person shall be extradited or deported to any country where that person may be charged with an offence which carries the death penalty.”.

This amendment, as I see it, is an extension of the principle enshrined in this legislation, that is, to abolish the death penalty. If we are going to abolish the death penalty for offences in this country, the natural corollary to that is that we should not extradite or deport or otherwise send out of this country people who [1861] would be subjected to similar penalties in the country to which they are sent.

The matter has been made more relevant and appropriate by the events that are taking place in Limerick over the last couple of weeks, where a man from Somalia sought refugee status in this country. His case has been taken up by Amnesty International, who came to the conclusion from their international investigation that the man would be subjected to persecution and also to the death penalty, that that was the likely effect of his being deported to Somalia and that in those circumstances the matter was of a very serious nature.

If we take on board the corollary to the decision that we are taking here, namely, that nobody shall be sentenced to death for any offence, then it is reasonable for us also to take on board and to include in our legislation a provision which will prohibit the deportation or the extradition of anybody, irrespective of whether they are citizens of this country or not, in regard either to extradition or deportation.

In the context of extradition, we have one country in the EC which still retains the death penalty. I understand there are some moves to abolish it there, but we have an extradition treaty with the EC. That is still a relevant matter. In the international context there are many countries that retain the death penalty as a form of punishment. Under the United Nations Convention on Human Rights — indeed, Amnesty International have been campaigning for many years — we are seeking for its abolition.

I urge the Minister to include this amendment. It is reasonable and appropriate in the context of the principles underlying this legislation and a most appropriate one in the circumstances to which I referred in relation to the Somalian in Shannon who has been seeking asylum in this country.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I support the spirit of the amendment. I have some problems with it in that, if somebody has committed such an offence elsewhere and under present legislation cannot be tried in this [1862] country for the offence, would the result of the acceptance of this amendment be that people who have committed such murders would be free in this country, not charged here and would avoid any sanction for their deeds? If that is the case, is it possible that this country could become a dumping ground for people who have commited such offences elsewhere? Because they could not be charged in this country perhaps they would believe that the thing to do would be to get from countries where there is capital punishment to Ireland, because there they would not be charged.

I support the amendment in the context of altering our legislation to charge them for offences committed elsewhere, but my understanding of it is that, if this is accepted, we are in a limbo situation and probably in the context of further legislation this should be included.

Mr. O'Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  My understanding of the amendment is that it is unnecessary because under the existing Extradition Act, 1965, with particular reference to section 19, there is a safeguard whereby there will be no extradition from this country if the person being extradited is likely to be sentenced to death. Where such other country still retains the death penalty, my understanding is that such an extradition would only take place where there is an assurance from that other country that such a sentence will not be imposed. Consequently, the amendment is not relevant.

In relation to Great Britain and Northern Ireland the death penalty is already abolished in that jurisdiction. In essence the situation is well covered under the 1965 Extradition Act. I oppose the amendment on the grounds that under those circumstances it is futile.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That seems to be very interesting. Perhaps if we could have more information, if we could have a direct specific quotation placed on the record from the 1965 Extradition Act, that would satisfy the proposer of the amendment. It may not, of course, satisfy Senator Neville. It leaves him in precisely [1863] the situation he described, where he apparently feels theatened by the notion that Ireland will become some kind of a haven for murderers. I actually think that is a little bit unrealistic to envision, pending being satisfied that the 1965 Act actually does have this effect. That would certainly satisfy me, because I do not think there is any point in having amendments for the sake of amendments; if it is already covered by another aspect of the law it may well be unnecessary.

But I would like to be absolutely certain of this because the principles enunciated by Senator Costello are absolutely right. The abolition of the death penalty is an international concept. Ireland's part in this is part of a developing international process. Amnesty International, who have really in a way spearheaded this, have consistently stated this: that Ireland is part of a growing trend towards the abolition of the death penalty.

My final point would be that we are abolishing the death penalty here, but by extraditing somebody to a jurisdiction, to take an extreme case, to some place like Iraq — I am not even sure whether we have an extradition treaty with them; I doubt it and I sincerely hope we do not — we would in effect, by extraditing to a jurisdiction of that nature, be sentencing them to death. Let us not mistake it. There are certain countries where, if you export a citizen back to that country, they will just be exterminated. We cannot escape the moral responsibility, because by so doing, by extraditing them in those circumstances, we would be effectively sentencing them to death.

I have just received confirmation that the 1965 Act does not cover deportation, for example, so I will be interested to learn on that. I am not very happy with it. It is a perfectly reasonable point for Senator Neville to make that perhaps in some extreme situation we could become a haven for murderers. I do not believe it. But, supposing it does, that does not absolve us from the principle involved that we should not be party to the sentencing of people to death. If it creates a [1864] further difficulty down the road, so be it; and let us address that difficulty when it is made manifest. I am sure that some extension perhaps of the Criminal Law Jurisdiction Act could be made to apply. Why not? If we have a situation where people commit murders and then come to Ireland to get away from it, why not have a situation where they could be tried by an Irish court at the expense and at the instigation of the country that wishes to pursue the conviction?

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I will try to satisfy the various points made, even though some of them appear to be opposites, by Senator Norris, Senator Costello and Senator Neville. To reiterate what Senator O'Donovan said, in so far as extradition is concerned a provision of this nature is unnecessary, given that the effect of section 19 of the Extradition Act, 1965, is to prohibit extradition for an offence which is punishable by death under the law of the country requesting extradition unless that country gives an assurance that the death penalty will not be carried out. Before extradition is possible in these circumstances the Minister for Justice must be satisfied as to the sufficiency of that assurance. Thus, the policy of the Oireachtas as regards extradition for offences which are capital in the other country has been established by the Extradition Act. Provided that the Minister for Justice is satisfied that the death penalty will not be carried out, the accused may be extradited, and if convicted will be liable to whatever is the next most severe punishment, such as imprisonment for life, provided by the law of the requesting country for the offence in question.

This is surely right in policy. The amendment would reverse this policy with the result that a person who may be guilty of an outrageous crime would escape extradition altogether. Lest it be argued that the amendment is justified in that it also applies to a situation where a person's extradition is sought for an noncapital offence — say, robbery — and he might after being extradited be charged with a capital offence, this situation is [1865] prevented by section 26 of the Extradition Act, which give effect to what is known as the rule of speciality. The effect of that section is that the person in question could not be tried in the other country for the capital offence unless the Irish Minister for Justice consented, and the Minister would not consent unless he obtained the necessary assurance that the death penalty would not be carried out.

Section 19 of the 1965 Act applies in relation to our extradition arrangements with countries other than the United Kingdom. In the case of the latter jurisdiction the death penalty as has already been mentioned, has, of course, been abolished to all intents and purposes.

The amendment would also prohibit the Minister from deporting, as in the case Senator Costello mentioned, a person to a country where he may be charged with a capital offence. This Bill is simply not an occasion for a provision about deportation. When considering whether to order the deportation of an alien the Minister naturally takes into account not only the extent to which the alien's presence here is harmful to the public interest but also any hardship which the alien may suffer either by his being enforcably removed from where he is living in this country or by being returned to his home country.

The need to balance all the relevant factors in such cases is a need that inevitably arises all the time in this and in every country where the law permits the deportation of aliens, which presumably means every country in the world. So, this is not a matter for this Bill.

The question of what concerns should be taken into consideration in deciding whether a person should be refused leave to land in this country or whether a person should be deported will be largely determined by international treaties and agreements relating to this area. The grounds on which a person should be granted asylum are internationally recognised. For example, the United Nations Convention relating to the Status of Refugees, done in Geneva on 28 July [1866] 1951, sets out the grounds on which refugee status should be granted, and this country is a party to that convention.

As far as the Minister is aware, no international agreement touching on this area provides that a person must be allowed to remain in a particular state simply on the grounds that a person might suffer capital punishment if deported. I believe that in an area like this which impinges on international relations it should be left to the international community to decide whether such provisions should be made. It is not something that should be done unilaterally. In any even it seems to me that the expression “may be charged” is quite unacceptable for vagueness. For example, it would prevent the perfectly legitimate deportation to his home country of a person who had been involved here in the importation of drugs where the death penalty existed in his home country but without any particular reference or relevance to the person's activities here. I cannot accept the amendment.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Certainly, I am pleased with the clarification by the Minister. It seems to be very satisfactory in relation to the 1965 Act in the context of extradition. I find it somewhat confusing, in the context of deportation, as to what specifically is the situation and how it is determined. Maybe it is a question of procedures or regulations that are unsatisfactory, but certainly people have been deported out of this country with very cursory examination of their actual application for asylum. If we leave it to the international community, whatever that really means, I know the Minister for Justice contacts the Department of Foreign Affairs and from there to the United Nations High Commission for Refugees, but obviously all of that information is dependent upon the initial interview or examination that takes place. That seems to be simply taken care of by emigration officers without the Minister for Justice, or any other statutory person who would have the final say in the matter, doing a thorough investigation.

[1867] Perhaps it is a question of procedures and regulations. I am not sure the legislation covers it adequately. Talking to Amnesty International in the context of these procedures, it appears that deportations are taking place and have taken place on a very cursory basis. Whatever we mean by the international community in this respect, I am not sure whether there is that interlocking connection between the Department of Justice and the UN Commission and perhaps it is falling down there. I do not think in the present circumstances we have enough provision to prevent deportation taking place to countries where there will be persecution and where there will be the ultimate penalty, the death penalty. Perhaps we could get some more clarification on that matter. This is an important amendment and certainly extends the principle underlying this legislation that, if we are going to abolish the death penalty, we should ensure that we have the necessary provision to prevent it occurring in other countries where we would be responsible for sending somebody to that country.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I am also most grateful to the Minister for his very clear explanation of the situation. I am now quite satisfied with regard to extradition. However, what the Minister subsequently said about deportation underlines the importance of this amendment, because I understood the House to be committed against the death penalty. The Minister gave a series of examples which indicated that he apparently would be quite happy to deport somebody to a jurisdiction where they would suffer execution. He did not even instance murder; he instanced drug trafficking. I am not a drug peddler. I am not a friend of a drug peddler. But the Minister did instance drug related offences. I am well aware of the fact that there are countries which do execute people for drug offences. I do not consider that this is appropriate. I think it is wrong and we would, in effect, be sentencing somebody to death if we deported them to these jurisdictions. If [1868] the Minister was concerned, for example, about the welfare of the Irish people — and quite rightly, because we have a very serious problem in dealing with drugs — presumably, if they committed an offence of importation of drugs or had been involved in some drug related offence here in this jurisdiction, they could and should be tried and sentenced here. Although I am satisfied now on extradition, I am afraid the Minister has dissatisfied me gravely on deportation and I have to continue my support of Senator Costello.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I am sorry that I have dissatisfied Senator Norris. I hate to do that. I am afraid Senator Norris has picked me up wrong. He seems to have accepted that my statement in relation to the example I gave of somebody who is wanted in his own country for the importation of drugs or drug offences. I did not suggest that that individual will be returned to a country where the death penalty is almost mandatory for drug offences. Around the world there is a large number of countries who have the death penalty still, but it is not in operation for drug offences. I just pointed out that, if somebody was here in Ireland whose deportation was being sought by the emigration authorities or by the Department of Justice for a drug offence, the effect of this amendment would be that that person could not be deported. The Senator may have felt that I was sending a person back to a country where we know the penalty for drug offences is a mandatory death sentence. That is not what I had in mind at all.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Does that mean that we would not deport in a circumstance where the death penalty would be imposed? There are a number of countries in Asia, for example. As a tutor in college I have had to deal with a rather sad case, with the assistance of the Department of Foreign Affairs, where a young woman was involved in some way in this kind of crime. I think she was probably quite lucky only to receive a sentence of imprisonment.

[1869]Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I cannot say what would or would not be done. As I have tried to explain, each case is looked at on its merits. As Senator Costello said, there is a way in which these things are done.

To get back to the point Senator Costello made, could I just define for him the term “refugee” as it may be of some assistance to him. That is defined in Article 1 of the UN Convention relating to the Status of Refugees, which was done, as I said earlier, in Geneva on 28 July 1951, as follows:

The term covers a person who owing to well founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

That may be of assistance to Senator Costello in helping him, hopefully, to withdraw the amendment.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  One further clarification on that point. I understand that the Soviet Union is not a signatory to that particular UN Convention. It would be to the Soviet Union that this Somalian would be sent in the first instance. Therefore, what would be the status or the standing of an international agreement where it would not be adhered to by the country to which somebody would be sent as a refugee, if they were not actually termed a refugee?

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  It is the country that is doing the deportation that has to be satisfied, not the country to which the individual is being deported. I cannot give sacrosanct guarantees. We have always faithfully related to the Geneva Convention on the Status of Refugees and will continue to do so.

Acting Chairman (Mr. McKenna): Information on Tony McKenna  Zoom on Tony McKenna  Is the amendment withdrawn?

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I will accept the Minister's assurances in this matter.

[1870] Amendment, by leave, withdrawn.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I move amendment No. 17:

In page 5, before section 7, to insert a new section as follows:

“8.—All machinery and instruments hitherto used in connection with the death penalty shall be placed in the National Museum.”

This is our last amendment on Committee Stage and it is tying up the loose ends of this legislation. It asks that all machinery and instruments hitherto used in connection with the death penalty shall be placed in the National Museum. What better place to put them. I do not know whether they have served us well. I wish we had abolished the death penalty many years ago. But there are paraphernalia connected with that particular punishment. In the context of the courts the judge traditionally had a black cap. I do not know what other instruments. I am sure we will find out when we look in the museum when this amendment has been passed. In relation to the prisons, obviously the gallows, the ropes and other paraphernalia. I wonder if they still exist. I would like an answer to that question — to what extent they do exist in Mountjoy and Portlaoise, where punishments have taken place traditionally in this country in relatively recent times. There are the cells in which the convicted people were kept. All of the paraphernalia would be put in the National Museum. That would be the appropriate place to consign it as part of our history — I would not like to say part of our heritage but certainly part of our history.

Professor Conroy: Information on Richard Conroy  Zoom on Richard Conroy  I must say I find this a macabre suggestion. I am sure it is meant as some sort of educational or historic one but it is almost pandering to the very sad, very base emotion which surrounds the particular ghoulishness of the procedure of an execution.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I should like to support the amendment vigorously. Nothing could be [1871] more appropriate than to consign these instruments of death to the place of death, a museum.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  That is a terrible thing to say about the Museum.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Not at all. It is a repository of all kinds of dead things. There are plenty of dead Irish men and women in it. I used to go in with a morbid curiosity to examine their flaccid corpses. It was a pleasure when I was a small child.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  The Senator learned very little from it.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  May I say, although not quite necrophiliac, as a child I found this a special pleasure. Let us not be under any illusion about it, this would have a very considerable draw and we could probably charge people to see a kind of a chamber of horrors. It also is important that we recognise, as Professor Conroy said, how ghoulish and horrible the instruments of death were. They would serve as a warning to us never to go back down that road. I remember being struck by a poster of a young black American man sitting passively in the death chair where he was going to be electrocuted and allowing himself to be strapped in. I cannot remember whether there was any print legend with that poster but the photograph of the instrument of death told its own story. Let us not pretend that it was not ghoulish. This year in the United States of America when some fault developed in the electric chair they literally fried somebody and for 15 minutes smoke came out of his ears and his nose. It was an appalling performance. I would like just to end by saying that of course as a Joycean I feel this must happen. I can give a quotation from Ulysses which makes it clear that Joyce's savage indignation about the barbarity of the death sentence is beautifully put in the cyclops episode where he details the ritual execution of an Irish patriot and then lists all the different apparatus used. It goes as follows:

[1872] Hard by the block stood the grim figure of the executioner, his visage being concealed in a tengallon pot with two circular perforated apertures through which his eyes glowered furiously. As he awaited the fatal signal he tested the edge of his horrible weapon by honing it upon his brawny forearm or decapitated in rapid succession a flock of sheep which had been provided by the admirers of his fell but necessary office.

Acting Chairman:  Is this relevant to the debate?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Absolutely, and if the Leas-Chathaoirleach had composed his soul with a little patience he would see precisely how relevant it is. I have just come to the important piece.

Acting Chairman:  I wish the Senator would, and with all haste.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I will, but with due feeling for the beauty of the prose. As I was quoting before an attempt was made to guillotine me:

On a handsome mahogany table hear him were neatly arranged the quartering knife, the various finely tempered disembowelling appliances (specially supplied by the world famous firm of cutlers, Messrs John Round and Sons, Sheffield), a terracotta saucepan for the reception of the duodenum, colon, blind intestine and appendix etc when successfully extracted and two commodious milkjugs destined to receive the most precious blood of the most precious victim. The house-steward of the amalgamated cats' an dogs' home was in attendance to convey these vessels when replenished to that beneficent institution.

It is, of course, a comic piece of writing. It is deliberately written in a comic vein but do not mistake the irony there and the savagery. Joyce is addressing precisely the subject of the amendment, the fact that firms of cutlers in Sheffield were [1873] employed to make the specific instruments for human disembowelling was an outrage against humanity. Any kind of material like this that we can lay our hands on ought to be in a specially created section of the National Museum.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I do not think anything to do with this Bill should be brought into a comic script. Of course, only Senator Norris would do that. We are dealing with a very serious Bill which seeks to do away with capital punishment, and whatever we are putting in its place is not comic. Only the Senator would put that into a quotation at this stage. I totally oppose the amendment and that is not because it was tabled by Senator Costello. If we are doing away with capital punishment let us do away with it for good and for all but the children of the nation should not see the implements that were used. I am a believer in museums but I would not like to see items of this nature on display. I would hate future generations to see items used when the last hanging took place here.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  I should like to support this amendment. I cannot understand why the other side of the House want to bury what is part of our history. Capital punishment has been in existence here since the foundation of the State.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  The Senator was long enough trying to bury it.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  May I continue, without interruption, before we land the Senator in the National Museum?

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I will be here when the Senator has gone. Wait until the universities down the country get the vote and Senator Ross will be out of here.

Acting Chairman:  Let us get back to the Bill.

Mr. Ross: Information on Shane Peter Nathaniel Ross  Zoom on Shane Peter Nathaniel Ross  Senator Honan came very close to losing her seat. I cannot understand why we should bury the part of our history on which we are ashamed. It is [1874] quite extraordinary that Senator Honan should say, “we are going to do away with it but we are also going to do away with the memory of it”. Those items should be put in the National Museum as a monument to the evil which we perpetrated ourselves. We are going to have to accept our history warts and all and without perversion. It is an appalling thing that people in this House should say, “no, let us forget about it”. Capital punishment is something of which we are ashamed and the display of those items should prevent us from ever reintroducing it. The more real the memory of it is the better. I do not know if anybody here has been to Madame Tussaud's in London but one of the things which convinced me so absolutely about the evils of capital punishment was going to the chamber or horrors there — we will not put Senator Honan in there, I promise her that — and seeing exactly how evil and wicked capital punishment is. I saw the re-enactment of some of the executions in America and Britain down the ages. It is absurd to say that we should not let this sort of memory live on as a warning for the future.

Mr. O'Donovan: Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  I wish to oppose this amendment. It is bringing down to a low level the seriousness of this debate. We are endeavouring to pass a Bill which will create legal history, possibly one of the greatest steps since the establishment of the juries in the 12th or 13th century. Unfortunately, this amendment is unreal in so far as there was no execution here in my life time. As far as I am aware there are no black hats in any of the courts that I frequent; there are no guillotines and there are no hangman's trees. Consequently, this amendment is bringing an element of weakness into a good debate. It should be withdrawn. It has no place in this positive, progressive, legislation we are trying to introduce. To bring in this amendment would reduce the Bill to a very frivolous level. I hope the other side will see this and withdraw it. We are here on a very serious issue. This is a technical, administrative matter.

[1875]Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  Is it relevant that we should spend almost half an hour on this amendment? I do not think it is important enough to devote that much time to it. I have no great views one way or another. I agree with the sentiments but whether they should be incorporated in a Bill is something else.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  I cannot accept the amendment. As Senator Conroy and others said, it is a ghoulish amendment, to be frank. Senator Costello asked if I could give him information as to where these objects are, and I should like to say sincerely, and with all due respect to him, that I do not care where they are, I do not care if they never turn up again and I certainly am not going to make any effort to try to find out where they are. I know where I would like to see them and it would not be in the Museum. However, what is proposed can easily be arranged on an administrative basis if the Museum and others considered it desirable.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  The Fianna Fáil side are being remarkably po-faced about the whole thing. They are really trying to adopt a very sententious attitude on the whole thing. First, I do not think there is any subject that is not suitable for the comic treatment.

Mr. Calleary: Information on Seán Calleary  Zoom on Seán Calleary  Who are the common people?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I did not say that; I said the comic treatment. The Minister misheard me.

Mr. McGowan: Information on Paddy McGowan  Zoom on Paddy McGowan  On a point of order, are we to spend our time being treated to comic comments and horror film scripts?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  They were not the kind of comments the Senator is talking about. I wish he would listen a little bit closer to what I was saying. I was reading from a work of great literature, of profound importance and significance.

Acting Chairman:  Will the Senator get on with the matter in hand. We have [1876] spent a considerable period of time on this and I have given great latitude to it.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I wish to put my point on the record of the House, if I have your permission. The point I was making was that Joyce uses comedy to underline the horror of these instruments. Perhaps it requires some small degree of sophistication to see that. May I point out that the logic of what Senator Honan was saying is that we should take the Assegai spears and take away all kinds of materials associated with a life that is apparently displeasing. There are unpleasant elements in life that are part of our history. It is foolish in the extreme, and educationally disastrous, to revise history all the time, to tailor us to a pretty little view that does not square with realities.

Mrs. Honan: Information on Tras Honan  Zoom on Tras Honan  I was dealing with this Bill and I wish the Senator would.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The amendment was put in to consign these barbaric apparatus to the National Museum. They are part of our past and that is the proper place for them. After the Second World War the gas chambers were not destroyed by the allies although they were the source of enormous persecution and barbarity. They were kept there as a reminder of what could be done and what barbaric punishments could be imposed. The objects I have referred to would be a stark reminder for ourselves, and our children, of the type of horrific sanction that was imposed in the 18th, 19th and 20th Centuries. I do not consider it ghoulish and I certainly do not consider this amendment is reducing this debate on the abolition of the death penalty to a low level. It certainly is not. It is dealing with the matter in a proper and positive fashion. However, if I understood the Minister to say that he is leaving the matter to the National Museum I am quite satisfied.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I would like to make one final point. It is a fundamental misconception to believe that something [1877] cannot be both comic and serious. It simply shows the person who thinks otherwise does not understand the nature of comedy.

Amendment, by leave, withdrawn.

Sections 7 to 10, inclusive, agreed to.

Acting Chairman:  Amendments Nos. 18, 19 and 20 cannot be moved as they fall within the decision taken on amendments Nos. 12 and 14.

Amendments Nos. 18 to 20, inclusive, not moved.

First Schedule agreed to.

Second Schedule agreed to.

Title agreed to.

Agreed to take remaining Stages today.


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