Capital Punishment in Ireland - Legal Developments

Legal Developments

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.