James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank Deputy Connolly for the proposed amendments. As she pointed out, the humanitarian assistance offence would be reframed as an element of the offence. The burden would be on the prosecution to prove the absence of a humanitarian assistance motive in almost all cases.

The reversal of the burden of proof is a central policy element of the Bill. Our primary motivation for amending the legislation in this area is to increase the effectiveness of criminal sanctions for these offences. The clear advice we received from the Garda and from prosecutors was that the existing framing within the 2000 Act of a requirement for material gain was a major practical block to successfully prosecuting organised criminal smugglers. The reason for that, which I think is widely accepted, is the payment typically will not take place in the State and the smuggled persons may not co-operate with authorities for fear of the consequences for them and for their families at home. Thus, the starting point must be that the existing legislation falls considerably short of providing an effective deterrent to people smugglers. We have sought to strike an appropriate balance that reflects our intention, namely, to focus on for-profit smuggling while not placing an impossible burden on prosecutors. Allowing smugglers to operate without risk of prosecution does not further any humanitarian motive. It places more and more people in the hands of criminal gangs who at the very least will charge exorbitant fees, will likely place the smuggled persons in danger and who may exploit them in the most shocking of ways. The State is not at odds with those providing genuine humanitarian assistance to migrants. We simply have to ensure well-intentioned measures do not unintentionally undermine the criminal sanctions we are putting in place.

Under the EU instruments for assisting entry and transit, we cannot incorporate a blanket element of financial material gain either as an element of the offence or as the defence. We can make provision for humanitarian assistance, as we have done, and we have done so as broadly as possible. In providing for a broad and generally applicable humanitarian assistance defence, we have gone well beyond what most other member states have done. The discretion has been taken up by only seven other states and in many other cases it has been even more narrowly defined.

With regard to where the burden of proof lies, the question is who is best placed to meet it. Let us take entry as an example. The prosecution must prove the accused intentionally assisted someone to enter the State in breach of immigration law and that the accused knew or had reasonable cause to believe the entry was a breach. That is a substantial burden. It is showing that a person intentionally facilitated unlawful entry. If that is proven, then if the accused is claiming he or she was acting for humanitarian motives, it is reasonable to require some evidence of that. On previous Stages, Deputies and Senators have raised how significant a prosecution would be for a humanitarian actor. While I accept being prosecuted is serious for anybody, I do not agree the framing of the humanitarian assistance provision as a defence gives rise to a real risk of unjustified or politicised prosecution in this country. The DPP's office is independent in its functions and it establishes clear and well-understood guidelines on the decision to prosecute. Critically, this states prosecutors should not lay a charge where there is no reasonable prospect of securing a conviction before a reasonable jury. There is nothing to suggest the DPP charges people to make political points or where there is no prospect of a conviction. Given the breadth of the defence as it is drafted, I do not believe there is a real risk of an unjustified prosecution and do not accept that bona fide organisations now find themselves in jeopardy. Similar language has been used in the Illegal Immigrants (Trafficking) Act 2000 and I do not believe there have been any politically-motivated prosecutions under that Act.

I reassure the Deputies what we have sought to do here is put a balance in place where we can secure prosecutions. Without the reverse burden, that has proven effectively impossible. At the same time we are ensuring there is a broad humanitarian defence to ensure those who are acting out of humanitarian motives will have a defence if it becomes necessary for them to do so. Reversing the burden is on the balance of probalities and not beyond all reasonable doubt, so I think that balance has been struck there. The various representations made by a number of NGOs were not ignored; they were all taken into account. However, the strong view from the Attorney General was that we took and incorporated those recommendations where we could but in terms of the reverse burden if we want to get prosecutions of smugglers this is the only effective way to do so.

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