Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Both of these amendments relate to presumptions, as their proposers have said. Amendment No. 6, in the name of Deputy Ó Laoghaire, is much the same as the first of the three new presumptions proposed by Deputy O’Callaghan in amendment No. 7, although it is proposed that they will go into different places in the Bill and will relate to different offences.

Similar presumptions to those proposed by Deputies Ó Laoghaire and O’Callaghan for insertion into sections 13A(1)(i) and 13A(1)(ii) are already applicable to the offences in this Bill by virtue of the application of the Criminal Justice Act 2011. Section 26 amends Schedule 1 to the 2011 Act by inserting a paragraph 28A which specifies that an offence under sections 5 to 10, inclusive, of the Bill will be included as a relevant offence for the purposes of the 2011 Act. As a relevant offence includes an offence specified in Schedule 1 to the 2011 Act, the amendment to the Schedule to be made by section 26 would mean that the offences created by the Bill would become relevant offences for the purpose of the 2011 Act. The Criminal Justice Act 2011 provides for a range of powers for the purposes of investigation and prosecution of criminal offences to which the Act applies, including presumptions relating to documentation in section 18 that are almost identical to the first two proposed here. Deputy Ó Laoghaire proposes to insert his amendment into section 9 of the Bill, which is in Part 2, while the other presumptions are all contained in Part 4. The presumptions under the 2011 Act are to be applied to offences under sections 5 to 10, inclusive, of this Bill. The other presumptions in sections 14 to 16, inclusive, of the Bill apply only to those offences by virtue of the fact that they relate specifically to bribes, gifts, donations and other such tangible advantages. There is little reason why presumptions relating to documentation could not be applied to the other offences in the Bill, such as those under sections 9 and 10.

I am minded not to accept this amendment for the reasons I have outlined. Part (c) of the amendment proposed by Deputy O’Callaghan relates to a document retrieved from an electronic storage and retrieval system or electronic device. I am aware that such a presumption exists in Revenue legislation and in the Competition Act 2012. As I have said, the Criminal Justice Act 2011 contains its own presumptions and has a much broader definition of "document" than that in the 2012 Act and in the Taxes Consolidation Act 1997, as amended. It is not clear that the third presumption suggested by Deputy O'Callaghan is necessary in respect of the offences contained in this Bill. I will have a look at this. We might even meet between now and Report Stage with a view to preparing an amendment to deal with section 13A(1)(iii) so that we are all on the same page for Report Stage. I do not think there is a huge difference between where we are now in any event. This is the third proposed presumption from Deputy O’Callaghan relating to the retrieval of documents from electronic storage systems. It is broad and assumes that all the documents on a laptop, computer or mobile phone were authored by the owner of the instrument. While this is rebuttable, it could present a difficulty. Given that an instrument could contain millions of documents, there might be an issue about the authorship of those documents. I would not like to see the committee divided on this matter. I will be happy to discuss it further with Deputy O'Callaghan with a view to bringing matters forward. The same applies in the case of Deputy Ó Laoghaire.