Brendan Howlin (Wexford, Labour)

I move amendmentNo. 46:

In page 15, between lines 12 and 13, to insert the following:

14.—The Criminal Justice Act 2006 is amended by the insertion of the following Part, after section 197, as Part 16:

"PART 16

THE EVIDENTIAL BURDEN

198.—(1) Where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption, proviso or excuse (all of which are subsequently referred to in this Part as 'provisos'), whether accompanying the description of the offence or otherwise —

(a) the proviso need not be specified or negatived in a complaint charging that offence,

(b) at the hearing of a complaint charging that offence, no proof in relation to the proviso is required on the part of the prosecution,

(c) if the defendant at the hearing of a complaint charging that offence wishes to rely on the proviso—

(i) the burden of proving such proviso rests on the defendant,

(ii) the court shall, unless the interests of justice otherwise require, allow the prosecution to re-open the case in order to adduce evidence in rebuttal of evidence adduced by the defendant under subparagraph (i).

(2) In determining whether subsection (1) applies to an enactment or rule of law creating an offence, regard shall be had to—

(a) whether the provision concerned—

(i) reduces the scope or extent of the factual outline that delineates the ambit of the offence,

(ii) excludes specified persons or cases from the class of those who would otherwise fall within that factual outline, or

(iii) otherwise narrows the effect of the enactment,

(b) whether, notwithstanding that a particular fact is provided for as an ingredient of an offence rather than the non-existence of that fact being provided for as giving rise to a proviso, the fact in question is of such a nature that its non-existence in any particular case would be exceptional and its existence in such cases generally can therefore reasonably be presumed,

(c) whether there is a reasonable possibility that a state of affairs adverted to by or on behalf of the defendant may exist or may have existed,

(d) the comparative ease or difficulty for the prosecution and the defendant in discharging the burden of proving the fact in question,

(e) the public interest in ensuring that the prosecution should not be required to prove facts peculiarly within the knowledge of the defendant or to disprove facts that are improbable,

(f) the presumption of innocence and the constitutional rights of accused persons.

199.—In any proceedings against a person for an offence—

(a) the court, in determining whether there is a case to answer, shall not have regard to any issue raised by or on behalf of the defendant, in a submission that there is no case to answer, in relation which it is for the defendant to submit, or point to sufficient evidence already received, to persuade the court there is a reasonable doubt as to whether such an issue may reasonably exist,

(b) (i) the court (or, subject to the judge's directions, the jury), in determining whether that person is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may, in relation to the issue sought to be raised by or on behalf of the defendant, draw such inferences from the failure of the defendant to submit, or point to sufficient evidence already received, as appear proper,

(ii) such failure may, on the basis of those inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the failure is material,

(iii) a person shall not be convicted of an offence solely on an inference drawn from such a failure.".

I do not intend spending too long on this, it is an amendment we have discussed before which was suggested by my legal advisers. It provides that where the criminal law makes a prohibition subject to an exception, it is for the defendant to prove that the exception applies, not for the prosecution to prove it does not apply. I used a very inelegant example on Committee Stage.

In essence, the first subsection describes "where an enactment or rule of law creates an offence but provides for a qualification, exception, exemption" or so on, described as a proviso. If the defendant, at the hearing of a complaint charging the offence, wishes to rely on that proviso, the burden of proof rests on the defendant.

The Tánaiste understands the point at least and responded to it on a basis of understanding when I argued the point on Committee Stage. I believe he is supportive of the idea behind it but does not feel this to be the appropriate vehicle for it, as far as I understand. If that remains his position I will not delay the House in getting on to the meat of what we must discuss in the remaining hour. Perhaps the Tánaiste will indicate if this is the right understanding.

See this speech in context