James Browne (Wexford, Fianna Fail) | Oireachtas source

There are a number of issues there. I will take Deputy Howlin's point. If one excludes from prosecution anybody working for a bona fide organisation and if such a defence is raised, the prosecution will have to prove a negative - that somebody was not part of a bona fide organisation. It is almost impossible for a prosecutor to prove a negative. It would make it extremely difficult. I will deal with the definition first. The reason we have not defined humanitarian assistance is that it is almost impossible to find what that definition would be. One will either end up with something that is too wide and could be widely abused by smugglers to come under that umbrella, or something that is too narrow. One cannot predict each and every organisation, event or circumstance. One will end up with people being prosecuted and convicted even though, to many of us, they may have come under the category of general humanitarian assistance.

We have to trust our courts and juries to be able to assess humanitarian assistance, if it gets that far. To be prosecuted, the DPP has to form an opinion that there is sufficient evidence to bring a prosecution. It will not do so where there is no reasonable prospect of securing a conviction by a reasonable jury. That is the first hurdle. Initially, the DPP will have to decide under its criteria whether to bring a prosecution in the first place.

The second hurdle arises where the prosecution will have to prove the elements of the offence. If the prosecution succeeds in that respect, it is then open to the person to claim humanitarian assistance as a defence. That is provided for in sections 9(1)(a) and 9(1)(b). At that point, the person can argue as a defence that he or she was operating for a bona fide organisation or otherwise, under section 9(1)(b), which refers to engaging in this activity "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit."

There are several steps to be navigated before anybody acting in this way could potentially be convicted. It is a similar situation and similar language is used in the Illegal Immigrants (Trafficking) Act 2000. I am certainly not aware of any cases of humanitarian organisations or people acting out humanitarian actions having difficulties created for them or being prosecuted or convicted under that Act. We have not seen any such situations.

It is not a presumption of guilt and we need to be clear on that. It is not presuming somebody to be guilty. If it was, this would be unconstitutional. This legislation, like a number of pieces of our law, is reversing the burden of evidence. It does so on the balance of probability. It reverses the burden of evidence in circumstances in which the people who have access to that evidence are the people who are best placed to be able to provide it. It has proven impossible in the cases of smuggling for the prosecution in this country to be able to get the evidence to prove money has changed hands in third countries or whatever the case may be. We have seen that. There have not been convictions in this country.

This has not been entered into lightly. It has been thought of very carefully, but if we are to get convictions against people who are smuggling and taking advantage of very vulnerable and desperate people, we need to reverse the burden. Reversing this burden will not in any way put genuine bona fide NGO humanitarian organisations or those individuals at risk. We have seen that through the Illegal Immigrants (Trafficking) Act 2000 and its operations.

We are satisfied with the balance that has been struck. We need to get prosecutions of those who are smuggling because of how they are taking advantage of vulnerable people. That is how we are looking at it. From the perspective of the DPP, the elements of the offence must be proven and then it is only on the balance of probabilities that the reverse burden kicks in.

With regard to the length of time taken to implement this, there has not been a 21-year delay in ratifying it. There was a conscious decision, for a very long time, not to act on or implement these European Union laws. We have now decided to do so to meet our Schengen Information System, SIS, II requirements, since we have decided to come under that. There has certainly not been a 21-year delay. There has been a conscious decision not to participate in this up until now.

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