Michael McDowell (Dublin South East, Progressive Democrats)

This is an interesting proposal which would effectively codify as a canon of interpretation the law which is common law to some extent and judge-based law in respect of when exceptions must be proved or disproved. Subsection (2) proposes to set out the exact criteria which a court should have regard to in deciding to apply rules of construction. It also proposes to deal with submissions of no case to answer.

I do not know where the original text of this proposal comes from; I do not know whether it is home-grown or whether it comes from some foreign criminal code. Regardless of where it comes from, I would need very extensive debate to see how it would interact with our existing law. One would need to look at all existing case law to decide whether it is a good idea to put it into law. We would also have to decide whether it would change the law significantly. The content of subsection (1) is all very well, but subsection (2) tells the court how it is to apply subsection (1). I am not clear in my own mind about this. For example, one of the criteria is in subsection (2)(d), which states: "the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question". I do not know whether that adds anything to the existing law or whether it makes the law more or less clear. I believe that this interesting proposal needs further study so I do not propose to accept the amendment.

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