Report on Mandatory Sentences - Law Reform Commission

2.64 During the 1980s, there were a number of unsuccessful attempts to remove the remaining traces
of capital punishment. In May 1981, a Criminal Justice Bill was introduced in the Dáil, which sought to
abolish the death penalty for all crimes. 169 The Government opposed the Bill on the grounds that it was
not an appropriate time to abolish the death penalty given that there had been much violence directed at
members of An Garda Síochána and prison officers in recent years and that it would increase pressure to
arm the Gardaí. 170 The Bill was ultimately defeated. Subsequently, in October 1981, the Minister for
Justice introduced a Criminal Justice Bill in the Seanad, which sought to replace the death penalty with a
life sentence and introduce a minimum term of 40 years’ imprisonment for treason and capital murder. 171
The Bill was passed by the Seanad but before it could get to the Dáil, the Government fell. 172 In 1984, an
identical Bill, the Criminal Justice (Abolition of Death Penalty) Bill, was introduced in the Seanad. 173 The
Bill was passed in the Seanad but does not appear to have proceeded any further.
2.65 In 1990, the Minister for Justice moved a motion that a similar Bill, the Criminal Justice (No 2) Bill,
be read a second time. 174 The Minister prefaced the debate by observing that the death penalty had been
all but abolished in Ireland and that even though it had been retained for treason and capital murder
under the Criminal Justice Act 1964, it had not been used since 1954. 175 He thus argued that it could no
longer be maintained that the death penalty had a deterrent effect or that in the “unique security situation
which has prevailed in this country for the last 20 years”, it protected the unarmed members of An Garda
Síochána from violence. 176 He also noted that, by abolishing the death penalty, Ireland would be joining
the vast majority of “western developed nations” which had already done so. 177 The Criminal Justice (No
2) Bill was enacted as the Criminal Justice Act 1990.
2.66 Section 1 of the Criminal Justice Act 1990 abolished the death penalty for all crimes, while
section 2 replaced it with a mandatory life sentence. 178 While the 1990 Act abandoned the classification
of “capital murder”, it continues to distinguish certain types of murder, including the murder of a
designated person such as a member of An Garda Síochána. 179 In this regard, section 4 provides that
such murders are punishable by a mandatory life sentence and minimum term of 40 years’ imprisonment
or, in the case of an attempt, a mandatory life sentence and minimum term of 20 years’ imprisonment.
The rationale for the Oireachtas selecting a period of 40 years as the minimum term of imprisonment was
explained by the then Minister for Justice as follows:
“In deciding what penalty to propose in the Bill to replace the death penalty I was guided by a
number of concerns. One, by the fact that the offences in question represent... an attack on the
institutions of the State. Two, that we have a largely unarmed Garda Force whose only
169
170
171
172
173
174
175
176
177
178
179
Dáil Debates, Criminal Justice Bill 1981, First Stage, 5 May 1981, Vol 328, No 9, Col 2150ff, Dr Noel Brown.
Ibid.
Seanad Debates, Criminal Justice Bill 1981, Second Stage, 15 October 1981, Vol 96, No 3, Col 218ff, Minister
for Justice, Jim Mitchell TD.
Seanad Debates, Criminal Justice (Abolition of Death Penalty) Bill 1984, Second Stage, 13 February 1985,
Vol 107, No 3, Col 278, Senator Shane Ross.
Seanad Debates, Criminal Justice (Abolition of Death Penalty) Bill 1984, First Stage, 15 May 1984, Vol 103,
Senator Shane Ross.
Dáil Debates, Criminal Justice (No 2) Bill 1990, Second Stage, 1 June 1990, Vol 399, No 6, Col 1194ff,
Minister for Justice, Ray Burke TD.
Ibid.
Dáil Debates, Criminal Justice (No 2) Bill 1990, Second Stage, 1 June 1990, Vol 399, No 6, Col 1195, Minister
for Justice, Ray Burke TD.
Ibid.
Section 1 and section 2 of the Criminal Justice Act 1990.
Section 3 of the Criminal Justice Act 1990. See: O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2 nd ed, 2006) at 244.
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