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Saturday, January 12, 2013

Capital Punishment in Ireland

Capital punishment has been abolished in the Republic of Ireland. The last execution was in 1954, of Michael Manning for the rape and murder of Catherine Cooper, a nurse. From then until 1990 while capital punishment remained on the statute book, a practice arose whereby every sentence of death was commuted by the Irish president. The death penalty was abolished in law in 1990, and has been specifically prohibited by the Constitution of Ireland since 2002. The constitution provides that the penalty cannot be reintroduced even in war or a state of emergency. Capital punishment is also forbidden by several human rights treaties to which the state is a party.

Early Irish law discouraged capital punishment. Murder was usually punished with two types of fine: a fixed éraic and a variable Log nEnech; killing the murderer was done only where he or his relatives could not pay the fine. The execution of the murderer of Saint Odran, the charioteer of Saint Patrick, has been interpreted as a failed attempt to replace pagan restorative justice with Christian retributive justice.
After the Norman conquest of Ireland, English law provided the model for Irish law. This originally mandated a death sentence for any felony, a class of crimes established by common law but extended by various Acts of Parliament. Reforms passed from 1827 to 1861 allowed judges to sentence to transportation, and later penal servitude, for many hitherto capital crimes. The Capital Punishment (Ireland) Act 1842 brought the law in Ireland closer to that of England by reducing the penalty for numerous offences, and abolishing the capital crime of serving in the army or navy of France. The last public hanging in Ireland was in 1868; after the Capital Punishment Amendment Act 1868 executions were confined to behind prison walls. Irish doctor Samuel Haughton developed the humane "Standard Drop" method of hanging that came into use in 1866. The last peacetime execution under the United Kingdom of Great Britain and Ireland was of William Scanlan in 1911 for murdering his wife.

Execution of Irish republicans created political martyrs, such as the "Manchester Martyrs" of 1867. The Prevention of Crime (Ireland) Act, 1882, was enacted during the Land War and introduced on the day of the funeral of Lord Frederick Cavendish, one of the Phoenix Park murder victims. This empowered non-jury trials to impose death sentences, prompting Francis Alexander Fitzgerald to resign in protest as baron of the exchequer. In fact no death sentence was handed down under the act's provision. In 1916, the execution of the Easter Rising leaders turned public sympathy in favour of the rebels. 24 rebels were executed during the 1919–21 War of Independence, starting with Kevin Barry. In Munster, which was under martial law, 13 were shot in Cork and one in Limerick. "The Forgotten Ten" were hanged in Mountjoy Prison, which helped turn opinion in Dublin against the Dublin Castle administration. The last United Kingdom execution was of William Mitchell, an RIC constable who had murdered a justice of the peace.

Although the self-proclaimed Irish Republic, which fought the 1919–21 War against the British authorities, established its own Republican Courts, these were not empowered to impose death sentences. However, the Irish Republican Army was empowered by the Republic's Dáil to court-martial and execute pro-Unionist civilians for such crimes as 'spying' and collaboration. The procedures at such trials depended on the local IRA leadership; many were kangaroo courts imposing summary justice. Besides executions, IRA members also carried out combat operations, assassinations, extra-judicial killings, and personally-motivated murders, with varying levels of sanction from the Republican leadership; the dividing lines between these categories can be blurred and contentious; a case in point being the 1922 Dunmanway killings.

The draft version of the 1922 Constitution of the Irish Free State included a ban on capital punishment, but the Dáil did not adopt this, so the relevant British laws continued in force. This was done because of the outbreak of the 1922–3 Civil War; further, a resolution of the Third Dáil on 26 September 1922 authorised military tribunals to impose death sentences on the anti-Treaty forces. During the war the Free State government executed 81 captured anti-Treaty fighters by firing squad, as well as ordering extra-judicial killings.
Between November 1923 and April 1954, there were a total of 35 executions in the state. In the 1920s, execution was relatively common for murderers. As had happened before independence, the British executioner came to Mountjoy to perform hangings. An Irishman sent to Britain as apprentice to Albert Pierrepoint was deemed to lack "the character to be an executioner".

The only woman executed after independence was Annie Walsh in 1925. She and her nephew blamed each other for the murder of her elderly husband. The press expected only the nephew to be found guilty, but both were. She was hanged aged 31 in spite of the jury recommending clemency.

During the state of emergency in World War II, increased IRA activity led to six executions.

Charlie Kerins was hanged, while five were shot by firing squad after sentence by military tribunals under Emergency legislation. Of these, Maurice O' Neill and Richard Goss had shot but not killed Gardaí: the only people executed by the state for a non-murder crime.

Michael Manning was the last person executed in the state. He was hanged by Albert Pierrepoint for murder on 20 April 1954.

In response to fears about renewed republican violence, Cumann na nGaedheal governments passed the Public Safety Act, 1927 and later the Constitution (Amendment No. 17) Act, 1931. Each provided for a special military tribunal during a state of emergency. The 1927 Act required the tribunal to pass death sentences for treason and murder, and permitted it to do so for unlawful possession of firearms; no appeal would be permitted. The 1931 Act empowered the tribunal to try a variety of crimes and impose a greater sentence than usual, including death, if "in the opinion of the Tribunal such greater punishment is necessary or expedient". This provision was condemned by the Fianna Fáil opposition (which came to power in 1932) and was never invoked.

Fianna Fáil introduced a new Constitution in 1937, which contained several references to execution:
Article 13 section 6
The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.
Article 40 section 4
Subsection 5
Where an order is made under this section by the High Court or a judge thereof for the production of the body of a person who is under sentence of death, the High Court or such judge thereof shall further order that the execution of the said sentence of death shall be deferred until after the body of such person has been produced before the High Court and the lawfulness of his detention has been determined and if, after such deferment, the detention of such person is determined to be lawful, the High Court shall appoint a day for the execution of the said sentence of death and that sentence shall have effect with the substitution of the day so appointed for the day originally fixed for the execution thereof.
Subsection 6
Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion.
Infanticide was made a separate crime from murder in 1949. For some years prior to this, death sentences for murder in such cases had always been commuted; the new act was intended "to eliminate all the terrible ritual of the black cap and the solemn words of the judge pronouncing sentence of death in those cases ... where it is clear to the Court and to everybody, except perhaps the unfortunate accused, that the sentence will never be carried out."

The Criminal Justice Act, 1951 explicitly excluded capital cases from those to which the Government was granted the power to commute sentences. Under Article 13.6 of the Constitution, the President's prerogative of mercy is not restricted.

Successive Ministers for Justice were asked in the Dáil about abolishing the death penalty: in 1936 by Frank MacDermot; in 1939 by Jeremiah Hurley; in 1948 by James Larkin, Jnr and Peadar Cowan; in 1956 by Thomas Finlay; in 1960 by Frank Sherwin; in 1962 by Stephen Coughlan. In each case the relevant minister dismissed the suggestion. Seán MacBride expressed personal support for abolition even while a minister in a government that oversaw the 1948 execution of Michael Gambon.

When Seán Brady asked in February 1963, minister Charles Haughey announced "that the death penalty for murder generally will be abolished but it will be retained for certain specific types of murder." The Criminal Justice Act 1964 abolished the death penalty for piracy, some military crimes, and most murders. It continued to be available for:
  • treason —under Article 39 of the Constitution, "treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by the Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt."
  • offences under military law, relating to
    • neglect of command
    • assisting the enemy
    • passivity as a prisoner of war
    • mutiny
  • "capital murder", i.e.
    • of an on-duty Garda or prison officer; or
    • for a political motive, of a foreign head of state, diplomat, or government member; or
    • in the course or furtherance of certain offences under the Offences against the State Act 1939:
      • Usurpation of functions of government
      • Obstruction of government
      • Obstruction of the President
      • Interference with military or other employees of the State
The Extradition Act, 1965 prevented extradition where the prisoner could be sentenced to death for a crime not punishable by death in Ireland.

From 1923 to 1964, 40 death sentences were commuted to life imprisonment; three condemned were found insane, and three died awaiting execution. Mamie Cadden was sentenced to be hanged in 1957 for felony murder after performing an illegal abortion on a woman who died; the sentence was commuted to life imprisonment.

Death sentences were passed on 11 people after the 1964 Act, for 5 different incidents involving the capital murder of a total of 6 Gardaí (police). All were imposed by the Special Criminal Court. The murders of several other gardaí, and of British ambassador Christopher Ewart-Biggs in 1976, might also have constituted capital crimes had any prosecution been brought. Of the 11 sentenced to death, 2 had the conviction for capital murder quashed on appeal, and were convicted instead of ordinary murder. The death sentences of the other 9 were commuted by the President on the advice of the government, to 40 years' imprisonment without parole. One conviction was overturned in 1995. Four convicts were released in 1998 under the amnesty of political prisoners under the Good Friday Agreement. The remaining four protested that they were also eligible for the amnesty, but remained in prison as of 2009.

The 40-year sentences were controversial, both because they had no statutory basis, and because they were not handed down by a judge. The Court of Criminal Appeal has upheld the sentences as the extra-judicial procedure is in step with the Irish Constitution's provision for commuting sentences. An argument in favour of the exceptional sentences is that members of the Garda Síochána (police) are usually unarmed when on duty, and so an exceptional deterrent is needed to protect them from being murdered.
Date of crimeConvictedVictimsContextLocationDate sentence passedDate scheduled for executionDate sentence commutedNotes
1975-09-11Marie and Noel MurrayMichael J. ReynoldsShot after a robbery of the Bank of Ireland in KillesterSaint Anne's Park, Dublin1976-06-091976-12-09Black Cross anarchists. Conviction quashed as the Garda was off duty and not in uniform; life sentence imposed. Released after serving 15 years.
1980-07-07Paddy McCann, Colm O'Shea (, Peter Pringle)Henry Byrne, John MorleyShot after a robbery of the Bank of Ireland in BallaghaderreenNear Ballaghaderreen, County Roscommon1980-11-271980-12-191981-05-27Pringle's conviction was overturned in 1995. McCann and O'Shea, members of Saor Éire, were still in jail in 2009.
1980-10-13Peter RogersSeamus QuaidShot while inspecting a van containing explosives, after a robbery in CallanBallyconnick, near Cleariestown, County Wexford1981-03-111981-07-01Provisional IRA member. Released in 1998 under the Good Friday Agreement.
1984-08-10Thomas Eccles, Patrick McPhillips and Brian McShaneFrank HandShot at a post office raidDrumree, Co Meath1985-03-281986-02-22Provisional IRA members. Released in 1998 under the Good Friday Agreement.
1985-06-27Noel Callan and Michael McHughPatrick MorrisseyRobbery of Ardee labour exchangeCollon, County Louth1985-12-031985-12-20 (McHugh)
1986-05-29 (Callan)
INLA members. Still in jail in 2011. Callan's sentence was not commuted till after the failure of an appeal against his conviction. In 2011, his claim to be eligible for remission was rejected by the High Court.


Noel Browne introduced a private member's bill to abolish the death penalty in March 1981. The Fianna Fáil government voted it down on its first reading. Fine Gael had supported the first reading and would have allowed a free vote at the second reading; the Labour Party supported abolition. Minister for Justice Gerry Collins, in opposing the bill, referred to the four death sentences which were then pending appeal, and said "were we to abolish [the death penalty], and because of the violence of recent years, the pressure for arming the Garda would become extremely strong". After the general election in June 1981, the Fine Gael–Labour coalition introduced a similar bill in the Seanad, which passed there but had not reached the Dáil when the government fell in January 1982. Another private member's bill, introduced by Shane Ross in 1984, began its second reading in 1985, but was still on the order paper in 1990. In 1988, the Progressive Democrats (PDs) produced an aspirational "Constitution for a New Republic", which included a prohibition on capital punishment.

Ireland's 1989 ratification of the International Covenant on Civil and Political Rights (ICCPR), effective 8 March 1990, made a reservation to Article 6(5). The Article reads "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." The declaration read "Pending the introduction of further legislation to give full effect to the provisions of paragraph 5 of Article 6, should a case arise which is not covered by the provisions of existing law, the Government of Ireland will have regard to its obligations under the Covenant in the exercise of its power to advise commutation of the sentence of death." The legislation referred to was the Child Care Bill 1988, which became law in 1991; a section was to have been included to raise from 17 to 18 the minimum age for the death penalty. In May 1989, Fianna Fáil minister Michael Woods stated:
I appreciate that there is support for the abolition of the death penalty and, in more normal times, I accept that there would be merit in a full and open debate on the pros and cons of such a move. However, times are not normal and there are armed subversive groups inimical to the institutions of the State. In such circumstances my primary concern — and that of the Minister for Justice — is to provide the maximum protection possible for those who defend our democratic institutions. I am concerned that a move to abolish the death penalty at present could give the wrong signal. It would remove the additional protection which the death penalty provides for members of the Garda Síochána and the Prison Service, who are especially at risk from violent criminals, some of whom have been murdered in the execution of their duty.
After the June 1989 general election, Fianna Fáil formed a coalition with the PDs; the agreed programme for government included abolishing the death penalty. It was abolished for all offences by the Criminal Justice Act 1990, which made the penalty for treason and first-degree murder life imprisonment, with parole in not less than forty years. The Child Care Bill 1988 was still pending, so the section relating to the death penalty was removed as superfluous. In 1993, Tánaiste Dick Spring said in Vienna that the 1990 abolition should be made irreversible, which Taoiseach Albert Reynolds later confirmed was government policy and would involve a Constitutional change.

However, the government fell six months later.

One recommendation of the 1996 Constitutional Review Group was:
Prohibit the re-introduction of the death penalty. If this is not deemed desirable, Article 40.4.5° should be retained. If it is prohibited, Article 28.3.3° will require amendment so that the death penalty cannot be imposed in any circumstances.
Article 40.4.5° prescribed the treatment of those under sentence of death; Article 28.3.3° deals with the suspension of rights during a state of emergency. On 7 June 2001, the Twenty-first Amendment of the Constitution of Ireland was one of three proposed amendments put to referendums. It added Article 15.5.2°, which prohibits the death penalty; deleted as redundant Article 40.4.5° and several other references to "capital crimes"; and amended Article 28.3.3° to prevent the death penalty being imposed during an emergency. The amendment was passed on a turnout of 34.79%, with 610,455 in favour and 372,950 against. The 38% no-vote was higher than the 28% predicted by polls; there were suggestions that the wording of the ballot question was confusing and that some voters were expressing dissatisfaction with the government.

Ireland adopted the Second Optional Protocol to the ICCPR in 1993, and the Sixth Protocol to the European Convention on Human Rights (ECHR) in 1994, both of which prohibit the death penalty in peacetime. The reservation to ICCPR Article 6(5) was withdrawn in 1994. Ireland ratified the Thirteenth Protocol to the ECHR, which prohibits the death penalty in wartime, at its opening in 2002.

The media occasionally reports calls to reconsider the ban on capital punishment. In November 2009, Richard Johnson, recently retired as President of the High Court, said that he favoured reintroduction of the death penalty in limited circumstances, such as murder committed during armed robberies. The Irish Council for Civil Liberties described his remarks as "deeply misguided and frivolous". At the January 2010 meeting of the Mid-West Regional Authority, two members of Clare County Council called for "a public debate" on the death penalty. In June 2010, Kevin Kiely, then outgoing mayor of Limerick, advocated the death penalty for "anyone involved in the planning and premeditation of a murder" in the aftermath of several gang-related murders.

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